Category Archives: Harassment
The year 2019 is shaping up to be a good year for workers in California. Several laws have gone into effect that benefit workers’ rights. Perhaps spurred on by the frustrations voiced during the MeToo movement, many of these laws strengthen existing laws dealing with sexual harassment and discrimination. Additionally, there is a raise in the minimum wage as well as overtime pay for agricultural workers.
This article will briefly discuss some of the new changes to California employment law. If you have questions about any of these changes, or you feel you’ve been the target of discrimination, harassment or some other employment violation, contact our office to schedule a consultation.
The Changes, a Brief List
One – Minimum wage increase – This year, the minimum wage in California has been bumped for companies with 25 or more workers from $11 per hour to $12 per hour. Companies with fewer workers will now be required to pay their employees $10.50 per hour.
Two – Criminal History and Employment Applications – A new senate bill clarifies existing law dealing with job applicants who have criminal histories. Under current law, employers are prohibited from basing hiring decisions on a job applicant’s conviction record if that conviction has been sealed, or dismissed. There are exceptions to this law, such as if the applicant would be required to carry a firearm as part of the job.
In some cases, the employer is legally required to inquire about certain criminal histories. The new law limits these inquiries to “particular convictions” as opposed to convictions in general. A particular conviction is defined under the new law as “a conviction for specific criminal conduct or a category of criminal offenses prescribed by any federal law, federal regulation, or state law that contains requirements, exclusions or both, expressly based on that specific criminal conduct or category of criminal offenses.
The purpose of this law is to prevent companies from being overzealous when required to look into an applicant’s past criminal history.
Three – Settlement Agreements and Sexual Harassment Disclosure– Lawsuit settlement agreements can no longer include provisions that prevent sexual harassment victims from disclosing factual information regarding their experiences. This means that if an employee settles a lawsuit with a company after experiencing harassment, he or she will be free to testify about this experience.
While the harassed person will be free to discuss the factual circumstances of the harassment, the actual settlement amount can still be kept secret by a non-disclosure clause. However, the law allows for settlement provisions that shield the identity of the sexually-harassed victim.
Four – Defamation Protection– It used to be that employees who had experienced sexual harassment and reported it could be exposed to a defamation suit. Thanks to Assembly Bill 2770, allegations of sexual harassment based on credible evidence and without malice are protected from such liability.
Five – Mandatory Sexual Harassment Training– While mandatory sexual harassment training has been in effect for years, it’s only applied to companies with 50 or more employees. The updated law has been broadened to include businesses with as few as five employees. Every two years, employees will be required to go through training. This includes one hour for non-supervisory staff, and two hours for supervisors.
Six – Agricultural Workers to Get Overtime – Prior to the passage of this law, agricultural workers were exempt from California’s overtime rules. Assembly bill 1066 will change this in phases over a period of four years. Among the immediate provisions of the law, workers who toil for more than nine and a half hours in one day (or more than 55 hours a week) must be paid time and a half for their overtime work.
By the year 2022, the law will require that agricultural workers putting in more than 12 hours in a day be paid at least double their normal hourly rate. Additionally, persons working more than eight hours a day (more than 40 hours a week) must be paid time and a half.
Seven – Females on Boards of Directors – California law now requires that publicly-held companies with executive offices in California have at least one female director on the board.
Eight – Breastfeeding at Work – Employers are now required to make reasonable requirements to provide rooms for breastfeeding that aren’t bathrooms.
Have Questions? – Ask an Employment Attorney
The changes to the laws discussed on this page only scratch the surface. Each law contains nuance, and most workers dealing with a bad employer require the help of a good lawyer to seek justice.
If you believe your rights as an employee have been violated, it’s recommended you talk to a lawyer sooner than later. California’s statutes of limitation mean that a person filing a claim against an employer is always fighting the clock.
Having a good lawyer on your side might mean the difference between a check or a fair settlement for your pain and suffering. Whether you’ve dealt with wage theft, discrimination, harassment or some other employment related violation, a good lawyer will be indispensable in helping you get your life back on track. Call the office of Branigan Robertson with your questions and find out how we can help.
There are many reasons a disenchanted worker will walk into an employment attorney’s office for a consultation. They include religious discrimination, sexual harassment, wage theft, among others.
One common scenario we attorneys see are employees who have become marginalized in the workplace. People don’t come to us because the law was broken. They generally don’t know the law. They come to our office because they were treated like garbage. Marginalization can occur in a number of different forms and include physical isolation from coworkers, lack of recognition for an employee’s achievements, bullying, or a basic lack of respect. And while an employee can be marginalized for many different reasons, not all of them are unlawful.
In its most benign form, employee marginalization can be the result of poor management. As discussed in this Industry Week article, sometimes a manager mistakes a quiet employee for an employee lacking initiative. As a result, the employee isn’t engaged by management, or encouraged to advance within the company. While this type of treatment may be unfair, even wrong, it isn’t necessarily unlawful.
This article was written to discuss the plight of marginalized employees, as well as the legal line an employer walks when marginalizing a worker. If you believe that your employer has violated state or federal law in marginalizing you, contact our office to see how we can help.
What is a Marginalized Employee?
Let’s look a hypothetical situation involving marginalization for purposes of illustration:
Picture a customer service representative named Bob, who works at a big box retailer. A friendly person, Bob’s laid-back approach to sales is appreciated by customers. While his individual sales numbers aren’t stellar, the department he works in has experienced a 15 percent boost in sales since his hiring. However, Bob’s supervisor frequently reminds him that the company doesn’t reward employees for ‘assists,’ and frequently demeans him in front of the other sales staff. One of the other sales reps, who’s numbers are slightly better than Bob’s, often gets overwhelming praise in front of staff for his performance.
When Bob complains to a store manager, his supervisor says he’s only trying to “toughen Bob up,” in order to make him better at his job. Unsatisfied with the company’s lack of response to his situation, Bob leaves the big box store for another job.
OK, so Bob has been marginalized, but did the employer break the law? Keep reading to find out.
The Effects of Marginalization on Morale
A person whose work is valued less by an employer while coworkers are praised and encouraged might experience a wide range of emotions, including discouragement, depression or hopelessness. In short, it’s not a good work situation.
The question that one often asks in this situation, is whether or not an employer who marginalizes a worker has violated the law. In Bob’s case, the answer is no. No laws were broken. Not all cases of employee marginalization are unlawful. It may be cruel, bad business, or just plain wrong, but an employee who’s experienced workplace marginalization may not have a strong case against the employer.
But your situation may be different. And this is what you need to pay close attention too. Keep reading to learn a little about what laws were designed to protect marginalized employees.
What the Law Says About Marginalized Workers
Both state and federal laws exist that are designed to protect workers. Even though California is an at-will employment state, which means an employer is usually free to terminate a worker for any reason, the law prohibits termination, discrimination, or marginalization in certain cases.
For instance, the Fair Employment and Housing Act §12940(a), which closely mirrors federal law, states that it is unlawful employment practice:
“For an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, to refuse to hire or employ the person, or to refuse to select the person for a training program leading to employment, or to bar or discharge the person for employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.”
So, if we look at the example of our friend Bob from the previous section, an employment attorney would have to consider several factors to determine whether or not he had a strong case. For instance: was Bob’s employer marginalizing him because of his skin color, religious beliefs or sexual orientation? Any of these would be discrimination and we have detailed pages and videos on each.
Was Bob the openly gay employee in his department? Did straight employees receive advancements or bonuses while performing the same duties as Bob? Did Bob’s supervisor make slurs or use sexually inappropriate language when referring to Bob (hostile work environment)?
These and other issues would need to be explored in order to determine whether or not Bob’s marginalization was unlawful.
Whistleblowers Are Also Protected
A whistleblower is an employee who notifies the authorities of workplace violations of law. Under California Labor Code, it is unlawful for a company to retaliate against an employee who has called attention to such violations. Not surprisingly, a common company response to a whistleblower is to isolate and marginalize that employee, perhaps in the hope that the employee will simply quit.
Make no mistake, if a company uses marginalizing tactics to retaliate against an employee because he or she blew the whistle on illegal company activity, the retaliation is unlawful.
Do You Feel You Were Treated Unlawfully by an Employer?
It’s a sad fact of employment. Some companies tend to treat their workers abysmally. This can be for several reasons: misguided attempts to spur production, poor management skills, a lack of regard for workers, or something more nefarious (and unlawful) such as personal prejudice against protected classes.
If you’ve experienced marginalization at work, it could be well worth your time and effort to discuss the specifics of your case with an employment lawyer. While it’s true that many cases of employee marginalization are not unlawful, a good lawyer will be able to look at the facts of the case and decide whether or not legal action should be pursued.
Contacting a Lawyer
A person who successfully pursues a claim against an employer engaged in employee marginalization can potentially benefit financially. In California, marginalized employees may be entitled to:
- Lost wages
- Back pay
- Pain and suffering
- Punitive damages
Employment attorneys representing workers often take cases on a contingency basis. This means the client doesn’t pay up front fees, but rather the attorney is paid with proceeds from the judgment or settlement. If you have questions about any of the topics covered on this page, or other employment law issues, contact our employee rights office to schedule a consultation.
Ask any employment lawyer to speak about the sexual harassment cases they handle, and chances are good they’ll tell you most claims are filed by women against men. But if you’re the type of person who prefers the rigor of numbers and not mere anecdotal evidence, the statistics also show what most of us know already—women are all too commonly the targets of sexual harassment. While this is an unfortunate fact, and a sad reflection on our society at large, it also overshadows the issue of men, who sometimes also, experience sexual abuse.
A USA Today article published December 18, which looked at the issue of why men don’t file sexual harassment claims, cited federal statistics showing that slightly more than 16 percent of sexual harassment claims were filed by men. The overwhelming majority of claims, more than 80 percent, are filed by women. The reasons for this could be analyzed endlessly by social psychologists and other experts, but there are basic factors that offer some explanation.
The Psychology of Sexual Harassment
You’ve probably heard it said before that sexual harassment and assault has less to do with the act of sex and more with power. A quick look at the distribution of gender and power in the workplace might give some insight to one of the driving forces behind sexual harassment.
Speaking to USA Today about this issue, Abigail Saguy, a professor of sociology and gender studies at UCLA explained, “One of the reasons it is men who harass women, and sometimes other men, is that this is about power and overwhelmingly (workplace) upper management is male, so the positions of power are disproportionately occupied by men and the bottom is disproportionately occupied by women.”
When it comes to the type of person that harasses others, psychologist Ellen Hendriksen examined several years of research on the issue and pointed out several traits common in harassers. These include: Moral disengagement, working in a male-dominated field, hostile attitudes toward women, and a cluster of psychological characteristics known as the “dark triad.”
These involve an individual who is limited in his capacity for empathy and holds a strong need for the admiration of others. As Hendriksen point out in her article, when these traits combine in a person “you essentially get a gleeful enthusiasm for exploitation, deception, and manipulation combined with a callous blindness to the feelings of others, all tied together with a bow of grandiosity.” She adds, “In other words, a perfect recipe for sexual harassment.”
Women Are Frequent Targets, But Men Can Suffer as Well
While it’s a sad commentary on the state of our society that so many women are forced to file claims against their male coworkers, another unfortunate facet to the issue is that the men who genuinely deal with harassment of their own are often overlooked. In many cases, a man who is harassed, be it by a female or male coworker, will just endure the behavior rather than report it. An employment attorney interviewed by USA Today pointed to the male ego as a possible hindrance to more men filing harassment claims.
“Pride gets in the way,” the attorney said. “Most good plaintiffs’ attorneys who handle discrimination and harassment claims take on female to male harassment and the same laws apply. It’s just a matter of whether the men who are victims want to come forward.”
Whatever Your Situation, Harassment is Wrong, Fight Back
Regardless of whether you are a man or woman, if you’ve experienced harassment, you have the right to file a claim against your harasser. This is best done with the aid and guidance of a qualified employment attorney. Harassment can include a wide range of behaviors including unwanted: comments, sexual advances, jokes, epithets, as well as comments about a person’s pregnancy status, sexual identity or orientation. Requests for sexual favors in return for career advancement also falls under the state’s harassment laws and is known as quid pro quo harassment.
In addition to protecting employees from these behaviors, state and federal laws also protect workers who speak out against harassment and standup for fellow employees. In other words, it is unlawful for an employer to retaliate against an employee who blows the whistle on sexual harassment in the workplace. Retaliation can include demotion, suspension, termination or other punishments.
Those who file claims against harassers might be eligible to recover lost wages, back pay, pain and suffering damages, and in some cases, punitive damages.
If you’ve experienced harassment, or retaliation stemming from harassment, contact a qualified employment attorney to help you explore your options. It could be well worth your time and effort to fight back. If you are looking for a page on marginalization of employees, read this post.
Branigan just finished filming a whiteboard video on unlawful sexual harassment at work. This video explains the basics of California’s sexual harassment laws. For more information, click the link to travel to our main sexual harassment page.
These days, even if it’s newsworthy, a sexual harassment case has a lot to compete with in order to command the public’s interest. In a digital mediascape flooded with a steady stream of updates on the world’s constant scandals, sexual harassment and discrimination in the workplace don’t hold us in rapt attention as in the days of Anita Hill. But while the latest Kardashian fiasco competes for clicks in the blogosphere, sexual harassment cases continue to flood the legal system at both the federal and state level. Many involve a male supervisor who harasses a female subordinate, but they come in a variety of other forms as well, and the details never fail to be shocking.
We’ve plumbed the depths of the internet to come up with a list of ten high profile and slightly crazy sexual harassment cases. No doubt some of these cases were high profile due some unusual quirks — from bear-hugging surgeons to sex-hungry CEOs.
Before we get to our list, here is a video that Mr. Robertson posted on YouTube that explains CA’s sexual harassment law. You can skip it if you’re in a hurry. Remember, while it might be entertaining to browse these cases from behind the safety of a computer screen, it’s usually a living hell for those caught in the experience. State and federal laws prohibit employers from discriminating against employees based on their sex or gender (in addition to other factors). If you believe you’ve been the victim of sexual harassment or discrimination, contact our sexual harassment attorney to see if we can help.
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1. Julie Fisher v. San Pedro Peninsula Hospital
In 1987 a surgical nurse named Julie Fisher filed a sexual discrimination suit against San Pedro Peninsula hospital in California. Fisher claimed that a gynecologist she worked with named Dr. Barry Tischler contributed to an environment of sexual harassment against women at the hospital. In her lawsuit, Fischer alleged Dr. Tischler engaged in sexual insults and inappropriate touching. On one occasion, Fischer claimed Tischler hugged her so tightly; he separated the cartilage in her ribs.
After Fisher complained to hospital management about Dr. Tischler’s behavior, the Dr. wrote her a letter of apology, but no disciplinary action was taken against him. She claimed that following an investigation by the hospital, Dr. Tischler continued to engage in harassing behavior with other female hospital employees, including pulling nurses onto his lap, grabbing women from behind and putting his hands on their breasts, picking them up and swinging them around. On one occasion, Fischer claimed, the good doctor even threw one woman onto a gurney. According to court documents, these actions took place in hospital hallways, the lunchroom, as well as the operating room.
The nurse claimed her fellow employees ostracized her after she complained about the Doctor’s behavior. Fisher said too that her husband, also a doctor at the hospital, began seeing a decline in his referrals.
The case was considered landmark at the time because Fischer was ultimately allowed to seek damages as a witness to sexual harassment and not as the direct target of harassment. Before she went to trial, the California Supreme Court ruled that employees who are not direct targets of sexual harassment could still sue if they can prove the harassment was pervasive enough to create a hostile workspace.
In a decision rendered by the California Court of Appeals, 2nd District, one judge took exception to a lower court’s ruling that referred to Dr. Tischler’s behavior as merely “sophomoric antics.” The judge wrote, “Relegating this conduct to such a category is both demeaning and dishonest. Grabbing a woman’s breasts, gesturing towards a woman’s vaginal area or even making offensive sexual statements to another is far from being merely sophomoric. It is egregious, hostile conduct which should not be condoned or excused to immaturity.”
But in 1992, after only seven hours of deliberation, a jury voted 9-3 in favor of Dr. Tischler, finding that he did not engage in sexual harassment. According to a Los Angeles Times article following the verdict, Fisher’s lawyer, Peggy Garrity, likened her client’s case to the Clarence Thomas and Anita Hill investigation.
“Clarence Thomas also made it to the Supreme Court and Anita Hill took a difficult, painful step and she made a difference,” Garrity told the times. “Slowly there will be changes here.”
According to an online state database, Dr. Tischler is still licensed to practice medicine.
2. EEOC v. Z Foods
In July, a Federal Judge awarded a group of California farm laborers more than $1.4 million in damages relating to sexual harassment and retaliation. The lawsuit, filed on behalf of the workers by the Equal Opportunity Commission (EEOC), alleged that two supervisors with California based Z Foods awarded promotions to female farm workers in exchange for sexual favors. The supervisors were also found to subject female workers to continuous sexual advances, leering and unwanted physical touching. The company also fired male and female employees who complained about the harassment.
The award was the maximum amount allowed by Title VII of the Civil Rights Act. The judgment found that the farm workers suffered severe emotional distress as the result of the company’s actions.
3. Elementary School Sexual Harassment
As far as pure craziness goes, this one might have taken the top prize, had the sexual harassment portion actually gone through the courts. Not only was the accused harasser a child, but he was also the winner of a large settlement.
In 2006, officials of at a Massachusetts elementary school accused a first grader of sexually harassing a fellow student. While sitting in a classroom of about 20 students, as well as a teacher, the unidentified boy allegedly touched a female classmate inside her clothing waistband on her skin.
The school principle said the child’s actions constituted sexual harassment and suspended the boy for three days. In addition, the police were contacted as well as social services and the district attorney. No charges were filed, but the boy’s parents sued the city in 2007. Media reports stated that an insurance settlement paid out to the boy’s parents totaled $20,000. Meanwhile, the boy will receive a guaranteed lump sum of more than $132,000 when he turns 17. The boy’s attorney was also paid $60,000 in legal fees.
“It was not handled properly, and we’re paying the price,” Brophy said.
4. Penny Muck v. Geffen Records
The music industry is rife with tales of debauchery. While many stories from the industry revolve around old-fashioned sex, drugs and rock and roll, legitimate harassment — and worse — does occur. One high-profile case to recently storm through the blogosphere involves the efforts of pop star Kesha to be released from her contract with Sony Records over claims that she was sexually assaulted and verbally abused by music producer Dr. Luke. While young music fans may find such a story to be an outlier in the industry, record executives have a well-established history of harassment and discrimination that goes back decades.
In 1992 the media referred to a 28-year-old secretary at Geffen Records named Penny Muck as the Anita Hill of the music industry. In a lawsuit filed in Los Angeles Superior Court, Muck claimed her boss, Marko Babineau, general manager of the label, had engaged in various harassing behaviors including fondling her breasts, and on one occasion, forcing her face into his crotch. Perhaps most shockingly, Muck recounted the day when Babineau stood over her desk and began to masturbate. In an interview with the Los Angeles Times, Muck said the experience reminded her of something out of Jekyll and Hyde.
“After he ejaculated, it was so weird,” Muck said. “He just walks back into his office, it’s like business as usual. As if nothing ever happened.”
While Geffen initially said Babineau left the company to spend more time with family, it later admitted to terminating the executive as a result of an investigation into his behavior with Muck. Though the label denied any prior knowledge of Babineau’s harassing behavior, the company quietly settled the suit with Muck for $500,000.
5. Melissa Clerking & Lindsey Allison v. Long Beach Police Department
Sometimes a discrimination case has all the elements of a made for TV movie. This was literally the case in the early 1990s when two female police officers sued the Long Beach Police Department for harassment and won a large settlement.
The officers, Melissa Clerkin, and Lindsey Allison accused male officers of treating them with hostility, and in some cases, putting them in physical danger. Allison, the department’s first female canine handler, was subject to ridicule and isolation from those in her unit who allowed their dogs to attack her. Clerkin meanwhile had been in a years-long physical relationship with a supervisor. When the relationship ended, the supervisor threatened her. When she complained about this treatment, male colleagues refused to provide backup assistance, and sent offensive messages to her over police computers.
In 1993, after Clerkin and Allison won their lawsuit, the city decided to settle the case for nearly $3 million. The women’s ordeal was chronicled in the made for TV movie “With Hostile Intent.” Broadcast in 1993, the film starred Melissa Gilbert.
6. James Gist v. Pam Matranga
Not every case of sexual discrimination or harassment involves a man mistreating a woman (though a lot of them do). In 2014, a Texas jury awarded $567,000 to 51-year-old former police constable James Gist after it found a supervising constable, Pam Matranga, sexually harassed him for nearly five months.
Gist accused Matranga of making suggestive comments and advances, as well as pressing his head between her breasts. Gist’s attorney told the Houston Chronicle, that in addition to awarding his client $200,000 more than he asked for, the jury wasn’t swayed by the atypical gender dynamics of the case.
“They rejected this whole notion that you get away with it because you are a female,” Griffin said.
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7. Corey Lashley v. Sheila Flynn
Yet another instance of a male plaintiff winning a sexual harassment against a female employer happened in 2014 in Queens. Corey Lashley took a job at the New Life Business Institute in 2012 after company president Sheila Flynn offered him position advertising for the company. While the New York Daily News referred to Flynn as a “sex-hungry boss,” federal court documents paint a slightly less salacious story.
According to court records, the pair initially met at a nightclub and a romantic relationship formed during Lashley’s employment with New Life. But Lashley contended that after he broke things off with Flynn, she continued to pursue him romantically.
Lashley testified that Flynn’s pursuit included rubbing on his body while the two were in her office, as well as performing oral sex on him. He testified to feeling badly about the relationship and made attempts to avoid his boss. Soon after that, Flynn fired Lashley.
During the civil trial, Flynn testified the reason she fired her former lover was because of his criminal background, which limited his ability to obtain a particular license pertinent to his job. However, Lashley maintained that his boss was aware of his criminal background at the time she hired him. Lashley sued Flynn and her company under Title VII of the Civil Rights Act arguing that he was the victim of “quid pro quo” sexual harassment. This type of harassment occurs when rejection of unwelcome sexual conduct is used as a basis for termination. A jury awarded him $40,000.
8. Kerry Woods v. Chuck Wolfe
In another example of the unexpected ways sexual harassment can occur, the EEOC sued a construction company in Louisiana in 2009 on behalf of a male employee who claimed to have been sexually harassed by another male employee.
According to the EEOC, the accused harasser was Chuck Wolfe, a superintendant with Boh Bros. Construction Co. Employee Kerry Woods accused Wolfe who taunted him with abusive sexual language and even exposed himself to Woods.
During the trial, Wolfe admitted to harassing Woods, because in his opinion, Woods was effeminate and didn’t conform to the stereotype of an ironworker. According to an article in the Pacific Standard, Wolfe took exception to Woods making an off-hand comment to coworkers about preferring pre-moistened antibacterial wipes to toilet paper. Wolfe reportedly found this to be a less than manly thing to say out loud.
Boh Bros. was ultimately found to have allowed “hostile work environment” sexual harassment to occur. The jury awarded Woods $451,000 in back pay, compensatory and punitive damages. This figure was reportedly reduced by the court to $301,000 due to statutory limits.
9. Women Harassing Other Women
As the previous case on this list showed, in the eyes of the law, men are capable of sexually harassing other men. It should come as no surprise then that sometimes women harass other women sexually.
In 2014, the EEOC announced a same sex harassment settlement in favor of a group of women who worked at a Reno Nevada branch of Wells Fargo. According to an EEOC press release, four female employees accused another female employee as well as a female manager of directing sexual comments, gestures and images at them. The manager and teller were also accused of inappropriately touching and suggesting that the four employees wear sexually provocative clothing.
During its investigation, the EEOC found that the women reported the offensive behavior several times, but management failed to respond quickly. Wells Fargo agreed to pay $290,000 to the four bank tellers as settlement.
10. Oncale v. Sundowner Offshore Services Inc.
The last case on this list laid the groundwork for same sex harassment cases to go to trial, and itself went all the way to the United States Supreme Court in 1997.
The case involved Joseph Oncale, a roustabout on an offshore oil platform in the Gulf of Mexico. Oncale accused his male co-workers, who were reportedly heterosexual, of harassing and taunting him repeatedly. In one incident, Oncale claimed while he and the other employees were showering, he was grabbed by his coworkers, who forced a bar of soap between his buttocks. Oncale also claimed to have been threatened with rape.
Oncale quit his job, and eventually sued. After a lower court tossed the case because it was a same-sex incident, the US Supreme course heard the case and decided the gender of the victim was irrelevant under the civil rights act.
“Nothing in [this law] necessarily bars a claim of discrimination because of sex merely because the plaintiff and the defendant are of the same sex,” Justice Antonin Scalia wrote on behalf of the court.
The above 10 examples are crazy stories from a factual standpoint. If you want to read about some enormous California sexual harassment verdicts, click here. If you want to learn more about wrongful termination, click here. If you want to learn more about other types of harassment, view our main hostile work environment & harassment page here. If you’re looking for a personal injury attorney, this guy is pretty good. Finally, if you just want to speak with an employment lawyer, visit our homepage.
“Harassment” and “discrimination” are terms that many people use interchangeably. Is there a legal difference between the two? Yes, there is a significant difference. But what about “bullying?” How does California employment law define and deal with bullying? This article will define harassment, discrimination, and bullying and explain how these three concepts play out in California’s workplaces.
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The Definition of Harassment, Discrimination & Bullying
Harassment is when an employee is treated poorly (name calling or unwanted touching) because of a protected characteristic or activity. Discrimination is when an employer takes an adverse action against an employee (termination or demotion) because of a protected characteristic or activity. Bullying is when an employee is treated poorly, but the bad treatment is not because of a protected characteristic or activity.
An example will make these distinctions clear. Jane is an employee for Acme. Jane is discriminated against if she is fired because she is a woman. She is harassed if John, her boss, calls her a derogatory name because she is a woman. She is bullied if John makes fun of Jane for being a Dodger’s fan. Here, being a woman is a protected characteristic in California employment law (“sex”). Being a Dodger’s fan is not.
Harassment and discrimination are unlawful. Bullying, on the other hand, it not illegal. Currently, there is no California or Federal employment law that addresses workplace bullying. However, if the bullying happens because of the victim’s religion, race, sex, disability, or color, etc., it becomes “harassment” under CA’s employment law. In that case, the employer is legally required to prevent it from occurring. If they don’t, the employee may file a lawsuit.
Read below to learn more about CA’s protected categories. If you wish to jump to a page exclusively about harassment, click here. If you want to jump to a page only about sexual harassment, click here. If you learn more about discrimination, here is our main page.
The CA Supreme Court on the Difference
In the case of Reno v. Baird, the California Supreme Court highlighted the distinction between harassment and discrimination. It said:
The court noted that harassment consists of a type of conduct not necessary for performance of a supervisory job. Instead, harassment consists of conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives. Harassment is not conduct of a type necessary for management of the employer’s business or performance of the supervisory employee’s job…. Discrimination claims, by contrast, arise out of the performance of necessary personnel management duties. While harassment is not a type of conduct necessary to personnel management, making decisions is a type of conduct essential to personnel management. (emphasis added)
California’s Protected Categories in Harassment and Discrimination Cases
A California employer cannot hold certain traits or characteristics against an employee. California law has specifically outlined what an employer may not use against employees. These protected characteristics include:
- national origin,
- physical disability,
- mental disability,
- medical condition,
- genetic information,
- marital status,
- gender identity,
- gender expression,
- sexual orientation,
- or military and veteran status.
Fortunate for CA employees, both harassment and discrimination include every one of these characteristics. Under Title VII, the federal anti-discrimination and harassment law, only protects against race, color, national origin, sex, and religion.
Who is Liable for This Bad Behavior?
Another subtle, but important difference between discrimination and harassment cases is who may be liable. In discrimination cases, only the company-employer is liable. In a discrimination case the manager making the discriminatory decision will not be personally liable because the harm stems from the employer.
But in harassment cases the person who does the harassing may be personally liable. The harasser can be sued regardless of whether the employer knew or should have known the harassment was occurring. While it is the duty of the employer to provide a safe work environment, as we all know, people find ways to hide what they want to hide.
If you want to investigate the difference further, feel free to look up the actual statute on point. Discrimination is governed by CA Government Code § 12940(a) and harassment is § 12940(j).
Any Exceptions to these Rules?
Generally, the only times in which the characteristics listed above can legally be used against a potential or current employee is when the employer can show that the characteristic is required for the job. This is called a bona fied occupational qualification. For example, if someone with a heart problem applied to be a firefighter. Even if that person could show that they can perform the essential functions of the job with an accommodation, the physical requirements of a firefighter job, mixed with the potential physical limitations of a heart condition, could endanger the lives of others. It is highly likely that the law would allow discrimination in this case.
Why Isn’t Bullying Illegal Like Harassment?
The answer is that “its complicated.” Essentially, the law is not perfect. It cannot regulate all bad behavior. The problem with bullying is that the definition is so wide and broad that if you made it illegal you would have an explosion of lawsuits. Since there already enough lawsuits in this world, the California legislature is unlikely to pass a law that would result in widespread abuse of the legal system.
Additional Legal Information
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