You’re probably reading this page because you are being harassed at work. But how do you know if you are suffering from unlawful harassment? After all, lots of bad behavior is perfectly legal in the eyes of the law.
This page describes California’s harassment law without legal jargon. It provides you with clear examples of unlawful harassment at work, what you can do about it, and the financial remedies available to victims. All of this was written by Branigan Robertson, an employment lawyer in Southern California.
Here are shortcuts to the specific topics below:
- The legal definition of “harassment”
- Your employer’s responsibility to stop the harassment
- What should you do if you’re a victim?
- How much are harassment cases worth?
- The deadline in which to pursue your case
This is Mr. Robertson’s general page on harassment. If you are looking for information regarding sexual harassment, click here. If you are looking for information regarding a hostile work environment, click here.
The Legal Definition of Workplace “Harassment”
Without effort, most people naturally understand that there is a significant difference between things that are unfair and things that are illegal. When it comes to abusive workplaces, when does bad behavior rise beyond irritating and become unlawful? This isn’t very complicated but we recommend that you read the next section at least two times.
In California, unlawful harassment at work occurs when four elements are met:
- Unwelcome conduct or comments are made to the employee.
- This behavior is directed at the employee because he or she has a protected characteristic that is identified in the law.
- The bad behavior is so severe or pervasive that it creates an abusive working environment.
- A reasonable person in the victim’s shoes would have also considered the workplace to be hostile, intimidating, or abusive.1
Unwelcome Conduct or Comments
First, for the harassment at work to be unlawful, your attorney is going to have to prove that you found the comments or conduct to be unwanted or unwelcome. This is easier said than done. Knowing something to be true and proving it to a jury are two different ballgames.
No two people are alike. You might find a comment to be horribly offensive, whereas another person might find the same comment to be funny and normal office banter. Therefore, if you never complain about the conduct or comments, or inform management that you find the behavior to be inappropriate, a jury might not believe that you didn’t want the behavior to happen.
Therefore, it is extremely helpful if you have written or documented evidence that clearly shows you found the behavior to be unacceptable, toxic, intimidating, abusive, etc. The best way to do this is with a written email to HR or an appropriate authority at your company complaining about the comments and asking the company to put a stop to it (more on this below).
Because of Your Protected Characteristic
What is critical to understand is that bad behavior only becomes unlawful when the perpetrator is harassing the victim because of a protected characteristic. What this means is that your boss or co-worker may not be violating the law if he or she is simply being mean to you. The critical element is that the harasser is doing these bad things to you because of your:
- Religion (religious creed),
- National origin,
- Physical disability,
- Mental disability,
- Medical condition,
- Genetic information,
- Marital status,
- Sex (this also includes sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions),2
- Gender identity,
- Gender expression,
- Age (if over 40 years old),
- Sexual orientation,
- Military, and
- Veteran status.3
This can be done in many ways:
- Verbal harassment – such as derogatory comments, the use of slurs, unasked for romantic advances, sexual comments, age-related jokes, mocking disabled people, and declaratory statements that generalize people in one or more of these categories.
- Physical harassment – such as any type of unwanted touching, assault, blocking, standing in someone’s way, locking someone in a room, restraining someone, and any other type of physical interference with work or movement.
- Visual harassment – harassment at work with derogatory cartoons, drawings, lewd gestures, or leering.
- Sexual favors – this can include unwanted sexual advances that have a condition of doing sexual favors in order to have employment benefits (such as “I’ll give you a raise if you spend the night with me.”)
This “protected characteristic” requirement is what elevates the bad behavior from an unfair work environment to unlawful workplace harassment. Most people simply assume that bullying at work is illegal. It’s not unless it is based on a protected characteristic. Mr. Robertson made an entire video on the differences between bullying, harassment, and discrimination. You can watch it on YouTube here.
Severe or Pervasive Behavior
In order for the bad behavior at work to be unlawful, it must be either severe or pervasive. What does this mean? Whether an instance or a pattern of harassing conduct is severe or pervasive is determined on a case-by-case basis.
Usually, a harassment lawyer will look at several facts:
- The frequency of the bad behavior. Did it only happen one time? Or did it occur three times a week for a year?
- Did the conduct unreasonably interfere with the victim’s work performance?
- How severe did the behavior get? Obviously, a full blown sexual assault is far more severe than a joke.
- Was the conduct physically threatening, or was it only offensive words and phrases?
- Was the harasser a supervisor or managerial employee within the organization, or was it done by a co-worker or lower level employee?
- Did the employee complain about it and get fired? Or are they still employed and the harassment was stopped?
Reasonable Person in the Victim’s Shoes
Let’s face it, there are a lot of people in this world who like to exaggerate or blow things out of proportion. That is why the law demands that the jury look at your case and agree that a reasonable person in your shoes would have found the harassment to be unwelcome.
So, from an objective perspective, once the behavior is put into context, would another person in your shoes have believed that you were being harassed? If the answer is yes, and yes to the other elements we’ve identified above, then we recommend you contact a harassment attorney like Mr. Robertson.
What is Your Employer’s Legal Responsibilities to Prevent or Stop Harassment?
Generally, companies are responsible for what happens to their employees at work. Corporations are legally required to “take all reasonable steps to prevent harassment from occurring.”4
Moreover, once a company is aware that harassment may be occurring, it has a legal responsibility to prevent it from occurring in the future. This may include conducting an investigation into the harassment allegations, reprimanding or firing the bad actor, as well as putting in place safeguards to prevent it from happening again in the future.
Supervisor vs. Co-Worker Harassment
It does matter who is doing the harassment to you. Is it a managerial employee? Or is it a co-worker or lower level employee? Generally, if the harasser is a supervisor of any kind, the company is automatically legally liable for the damage it causes.
On the other hand, if a co-worker is the one harassing you, then the company will only be liable if the company knew or should have known the harassment was taking place. As you’ll see below, that is why we almost always recommend that you make a written complaint to the appropriate authority at the company to inform them that the harassment is taking place, you find it inappropriate, and you want it to stop.
Retaliation for Complaining about Harassment
What if you complain about harassment at work and then the company retaliates against you? Unfortunately, this frequently happens to victims of all different types of workplace harassment. Retaliation is absolutely prohibited by law.5 If you want to know more about this, visit Mr. Robertson’s retaliation page here.
What Should You Do if You’re a Victim of Harassment?
The answer to this depends on if you were terminated, if you quit your job, or if you’re still employed. Attorneys like Mr. Robertson usually change their advice depending on what your situation calls for. That advice can change dramatically if you are still employed, quit their job, or if you were fired or “laid-off.”
If You Were Terminated
If you were terminated after experiencing unlawful harassment at work, what should you do? Generally, we recommend that people call an attorney as soon as the termination has occurred. That is the best time to contact a harassment lawyer for a free consultation. An attorney will tell you if you have a case and what it might be worth. If you feel like we have earned that phone call, please call or contact us here.
Generally, we do not recommend that people try to negotiate with the company for severance or threaten legal action. We’ve seen too many people with great cases ruin their case by threatening legal action or inadvertently getting sued for extortion. You should find and rely on the advice of an experienced attorney.
However, not everyone can find a lawyer to take their case. If you cannot find a good lawyer to take your case, we generally recommend that harassment victims consider filing a claim with the Department of Fair Employment & Housing (“DFEH”). The DFEH will investigate your claim for you, and in some cases, pursue the claim on your behalf. The DFEH is similar to the Equal Employment Opportunity Commission (“EEOC”), except it is California specific.
If You Are Still Employed
Generally, lawyers like Mr. Robertson advise people who are still employed to submit a respectful complaint in writing to the appropriate authority at the company. This complaint needs to be written and submitted the right way.
To be effective, this complaint must be written and submitted the correct way. It must be respectful, helpful, concise, and, most importantly, identify the protected characteristic that is motivating the bad behavior in the first place. Mr. Robertson has made an entire video on how to properly complain at work. Watch it here.
If you would rather watch this video on YouTube, click here.
If You Quit Your Job
If you quit your job because you suffered workplace harassment, what are your options? Unfortunately, you have fewer legal options. That is why, unless extraordinary circumstances apply, good employment attorneys like Mr. Robertson generally don’t recommend that people quit.
As you’ll see in the money section below, if you quit your job, you are not entitled to recover your lost wages. This is a significant blow to the financial prospects of your case. Usually, lost wages are a significant part of the recovery in a harassment case.
Are there exceptions to this? Yes, if your resignation can be classified as a “constructive termination” you can still recover your lost wages. According to California law, a constructive termination is when, due to the employee having a legally protected characteristic (such as age, gender, religion, sex, disability, etc.), the company makes the working conditions so intolerable that a reasonable person in the employee’s position would have had no reasonable alternative except to resign.
Be warned, it is very hard to have your resignation qualify as a constructive termination. In general, it’s very hard to win constructive termination cases. But Mr. Robertson has successfully pursued several constructive termination cases. So, if extraordinary circumstances apply to your harassment, call our office for a free consultation.
How Much Money are Harassment Cases Worth?
If you would rather watch this video on YouTube, click here.
Some harassment cases settle for millions of dollars. Most settle for much less than that. Why is there such a start difference? Why is one case worth millions, while another only $5,000?
There are hundreds of factors that go into valuing harassment cases. There are the big factors like the severity of the harassment, how much money you’ve lost (if you were terminated), the quality of the evidence, how many complaints did you make, did the harasser do this to other people in the past, and did the company retaliate against you for opposing the harassment? These factors vary greatly from case to case.
What about statistics? Unfortunately, there are no statistics on harassment case value because all settlements are confidential.
To get a realistic idea of how much your case might be worth, you need to explain the facts to a good harassment lawyer like Mr. Robertson. But even then, no lawyer can predict the future with absolute precision. Mr. Robertson has seen great cases fall apart. He’s also seen bad cases settle for a lot more than he initially thought.
The Deadline to File Your Case
California law has deadlines for everything. These deadlines are called “statutes of limitations.” If you are a victim of harassment, what is the deadline for you to file your case?
In CA, you need your lawyer to file your claim with the DFEH and get a “right-to-sue” letter within one year of the last instance of harassment. After your attorney gets your right-to-sue letter, you have one year in which to file your lawsuit in court.
Unfortunately, Mr. Robertson has told a lot of people that they cannot pursue their harassment case because they simply waited too long. Don’t be one of those people. Mr. Robertson recommends that you contact a lawyer right after you are fired. Don’t wait several months. Don’t even wait a few weeks. This is because certain situations require you to take action as soon as six months. Also, multiple laws might apply to your case, so multiple statutes of limitations may apply. So, don’t wait, contact a lawyer ASAP.
Obviously, this page focuses on California law. California’s anti-harassment law can be found in the Fair Employment & Housing Act (“FEHA”) which is specifically codified in Government Code § 12940(j). This law obviously only applies to residents of California.
If you’re not in CA, your state may have its own anti-harassment law. At a minimum, the Federal Government has harassment at work laws that apply everywhere in the United States. Here is a great internal page on the U.S. Department of Labor’s website that details the Federal law. We also recommend you visit the EEOC’s page on harassment. It is a great resource.