August 17, 2021
Harassment at work is not only demeaning and unwelcoming, it is a violation of an employees’ rights. But what is harassment at work? What is a hostile work environment?
Any discrimination at the workplace that leads to the violation of the Title VII of the Civil Rights Act of 1964 along with other federal regulations, like the Age Discrimination in Employment Act of 1967 and the Americans with Disabilities Act of 1990 is considered to be Workplace harassment.
As per The Equal Employment Opportunity Commission (EEOC), harassment can be defined as any form of unwelcome conduct whether verbal or physical based on race, religion, colour, sex (including pregnancy and gender identity), sexual orientation, nationality, age (40 or older), physical or mental disability, or genetic information.
Harassment becomes unlawful when:
- The employee or contractor is forced to endure the offensive conduct in order to continue their employment
- The conduct is severe or pervasive enough to create a work environment that a reasonable person would find the workplace to be intimidating, unfriendly, or offensive.
- If the management or superior’s harassment leads to an obvious change in the employee’s salary or status, it would be considered unlawful harassment.
The federal law and the Department of Labor (DOL) policy do not permit any form of unlawful harassment of anyone in the workplace, including contractors.
A co-worker, supervisor, or a non-employee like a customer, client or vendor can subject an employee to workplace harassment. The victim of workplace harassment may not even be the target of harassment but maybe someone who is exposed to it and feels offended by the harasser’s conduct.
How do the California courts term harassment? For harassment to be unlawful, as per the definition from the Department of Labor, the harassment in the workplace should be unwelcome and based on the employees’ protected status.
According to the California FEHA Harassment Definition, workplace harassment can be divided into several categories:
- Verbal harassment: When an employee is subjected to derogatory comments or slurs, unsolicited romantic advances, sexual comments or jokes it is considered verbal harassment.
- Physical harassment: Any form of unwanted touching, assault and physical interference with work or movement is considered physical harassment.
- Visual harassment: Harassing an employee with derogatory cartoons, drawings, lewd gestures or leering falls under visual harassment.
- Sexual harassment: Asking for sexual favours or making unwanted sexual advances with a condition to receive employment benefits.
What is the Employer Liability for harassment at work?
The employer is liable for any form of harassment subjected on an employee by their supervisors resulting in termination, failure to promote or hire, and loss of wages.
If an employee is subjected to harassment by a supervisor, the employer can avoid liability if they can prove:
- They tried to reasonably prevent and immediately correct the harassing behaviour; and
- The employee failed to take advantage of any preventive or corrective opportunities offered by the employer.
The employer can be held liable for harassment subjected by non-supervisory employees or non-employees like independent contractors or customers or vendors if they knew or should have known about the harassment and failed to take prompt and suitable corrective action.
What should a victim of workplace harassment do?
An employee who is a victim of workplace harassment because of a co-worker, supervisor, or any other party in the workplace, should immediately report the harassment to their employer.
In most instances, the victims are concerned about their work status and do not want to file a formal complaint. But it is extremely important for the harassment to be reported. By filing a complaint, the victim is protecting their rights.
Below are the steps that a victim of workplace harassment should take:
- File a complaint with the HR department of your company and follow any guidelines defined by the company for filing workplace harassment.
- If the HR department is not able to help resolve your problem or the company is not able to protect your rights, hire an experienced Employment lawyer who can file an administrative charge with a federal and/or state agency like the DFEH or EEOC. Filing an administrative charge is not filing for a lawsuit, it is only notifying the federal and/or state agency about the harassment.
- The next step is to obtain a right-to-sue letter from the agency to file a lawsuit. Once the charge is filed the agency notifies the employer and then investigates the charges, requests the employee and employer to work together and settle the dispute.
- If the employer is not able to settle the dispute, the agency will issue a right-to-sue letter, after which your lawyer can file the lawsuit.
Filing a lawsuit against the employer requires making very important decisions, like where, when, and how to file the lawsuit. Speaking to an experienced lawyer helps in better understanding your workplace rights and assess the strength of your claims in court.
If you or your family member has been a victim of workplace harassment and are do not have an idea how to handle the case, call us at (951) 461-2387. We at Khashan Law can assist you with both filing a complaint with your employer and fighting the harassment case in court as well.