FACT: Both California and Federal law expressly prohibit harassment in the workplace.
What is Harassment?
Like discrimination, harassment occurs when an employee is treated differently from other employees in the same or similar circumstance (what the law calls “similarly situated employees“), because of a “protected” characteristic such as 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. Harassment in the workplace can occur in a variety of circumstances. Some examples of conduct may lead to unlawful harassment are slurs, offensive jokes, references or pictures, unwanted advances, touching, assaults or threats, derogatory comments or name-calling, and intimidation. When this conduct becomes so severe or pervasive that it creates a “hostile work environment” then an employer may be found liable under FEHA. There is also an additional type of sex harassment called “quid pro quo.” This occurs when an employer or supervisor requires an employee to engage in sexual conduct if the employee wants additional employment or job benefits (such as promotions or job security).
For discrimination and harassment to be unlawful, under California law, it must be based on a “protected characteristic.” Under California’s Fair Employment and Housing Act (FEHA), “protected characteristics” include:
Race: Employers are prohibited from discriminating against and harassing employees because of their race. Examples of race discrimination include being denied employment, promotion, or other employment benefit because the employee is Chinese-American or Latin-American. Examples of race harassment include derogatory comments or slurs directed at an employee’s race or better treatment of other races.
Color: While there can be some overlap between race, color, national origin, and ancestry discrimination, they are not all the same. Employers also cannot discriminate against or harass employees based on their color. For example, if an employee requests a promotion and is denied because the employer prefers “lighter-skinned” employees or applicants, then the employee may have a potential claim for discrimination based on color. Likewise, it is unlawful to harass employees based on their color.
National Origin (including language use restrictions) and Ancestry: National origin refers to the country where a person was born, or, the country from which his or her ancestors came. FEHA outlaws workplace discrimination based on national origin and ancestry. Thus, if an employer makes direct or indirect statements regarding an employee’s national origin or ancestry and discharges or demotes the employee based on his or her national origin or ancestry, then the employee may have a claim for discrimination and/or harassment based on national origin and ancestry.
Importantly, national origin discrimination may also be present where an employer has policies preventing employees from using other languages in the workplace without a business necessity.
Because there is not always direct evidence (for example, actual statements by the employer) of discrimination based on race, color, national origin, and ancestry, an employee may be able to rely on statistical evidence to establish his or her claim that the employer has systematically engaged in discrimination in its employment practices.
Religion/Religious Creed: It is unlawful for employers to discriminate against or harass employees on the basis of the employees’ religion and/or religious beliefs. “Religion” and “religious creed” are broadly construed to encompass virtually all aspects of religious beliefs or religious practices. In addition, FEHA protects not only those commonly recognized religions, but also other belief systems so long as the employee sincerely holds that belief.
In addition, FEHA requires employers to make reasonable accommodation for employees’ religious practices, unless doing so would can an undue burden on the employer.
Physical Disability: FEHA protects employees from discrimination and harassment based on a physical disability. Employers cannot discriminate against employees with physical disabilities if that employee can perform the essential functions of his or her position. California law defines a physical disability as any physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss that does both of the following: (a) Affects one or more of the following body systems: neurological, immunological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine; and (b) limits a major life activity.
Mental Disability: As with physical disabilities, FEHA’s protection also extends to mental disabilities. Under FEHA, if an employer regards an employee or treats an employee as though they have a mental condition that makes achievement of a major life activity difficult, such is enough to constitute a mental disability.
Medical Condition (including cancer, genetic characteristics; predisposition to disease): In addition to physical disabilities and mental disabilities, FEHA prohibits discrimination and harassment based on a medical condition. FEHA defines “medical condition” to mean either: (a) any health impairment related to or associated with a diagnosis of cancer or a record or history of cancer; or (b) genetic characteristics, meaning any scientifically or medically identifiable gene or chromosome, or combination or alteration thereof, or inherited characteristic, that is known to be a cause of a disease or disorder in a person or his or her offspring, or that is determined to be associated with a statistically increased risk of development of a disease or disorder, and that is presently not associated with any symptoms of any disease or disorder.
In addition, employers are required to provide reasonable accommodation for known physical or mental disabilities of an applicant or employee. Once an employer is made aware of the need for accommodation, the employer is required to engage the employee in an interactive process to determine what reasonable accommodations it can provide. The duty to engage in the interactive process exists regardless of whether the employee requests an accommodation.
Genetic Information: In 2012, genetic information was added to FEHA’s list of protected characteristics. “Genetic information” means, with respect to any individual, information about: (1) the individual’s genetic tests; (2) the genetic tests of family members of the individual; or (3) the manifestation of a disease or disorder in family members of the individual. This includes any request for or receipt of genetic services, or participation in clinical research that includes genetic services, by an individual or any family member of the individual. Genetic information does not include information about a person’s sex or age.
Marital Status: FEHA also prohibits employers from treating employees differently because of his or her marital status, meaning if an employee is married, widowed, divorced, single or unmarried with a same-sex or opposite-sex partner, and the employer. Examples of situations where discrimination based on marital status may be present includes comments or actions by the employer basing employment decisions on the employee’s marital status, such as denying a promotion because the employee is married with children and presumed to have less time to devote to work.
Sex/Gender: FEHA prohibits discrimination and harassment based on sex and gender. This includes physical differences as well as stereotypes and attitudes of and about sexes. More specifically, under FEHA, gender discrimination includes a “person’s identity and gender related appearance and behavior whether or not stereotypically associated with the person’s assigned sex at birth.” Examples of sex and gender discrimination include when one sex is treated more favorably than other sexes, for example, in terms of rate of pay, promotions, or continued employment.
Pregnancy or Related Conditions: It is unlawful for employers to discriminate and harass employees because of pregnancy or related conditions. In addition, California law provides that qualifying employees “disabled by pregnancy, childbirth, or related medical conditions” are entitled under California’s Pregnancy Disability Leave Law (“PDLL”) “to take a leave for a reasonable period of time not to exceed four months and thereafter return to work.” This leave need not be taken all at once and may be taken intermittently or on a reduced work schedule when medically advisable. A “related medical condition” is defined as “any medically recognized physical or mental condition that is related to pregnancy or childbirth…”
As with disability discrimination, employers also must provide reasonable accommodation for an employee for conditions related to pregnancy, childbirth, or related medical conditions, if requested, with the advice of a healthcare provider.
On a related note, qualifying employees also are protected under the California Family Rights Act (“CFRA”) and the Family Medical Leave Act (“FMLA”), under which they are entitled to a total of 12 workweeks of leave during any 12 month period for one or more of the following reasons:
- Birth of a son or daughter of the employee, in order to care for the son or daughter.
- To care for a spouse, son, daughter, or parent of the employee if the spouse, son, daughter, or parent has a serious health condition.
- The employee is unable to perform the functions of their job because of a serious health condition.
Under FMLA an employee is not required to take their leave of absence all at one time. The employee is allowed to take the leave “intermittently” or on a “reduced leave” schedule.
Following pregnancy disability leave and CFRA/FLMA leave, employers are required to reinstate the employee to the same or comparable position.
Gender Identity/Gender Expression: “Gender expression” is defined as “a person’s gender-related appearance and behavior, whether or not stereotypically associated with the person’s assigned sex at birth.” This includes a requirement that dress codes include that an employee must be allowed to dress consistently with both the employee’s gender identity and gender expression. The FEHA prohibits employers from excluding men wearing dresses.
Genetic Information: California law defines “genetic information” as information about an individual’s genetic tests, genetic tests of an individual’s family members, and the manifestation of a disease or disorders in an individual’s family members. Genetic information includes any request for or receipt of genetic services or clinical research that includes genetic services, by an individual or any family member of the individual.
Age: Employees who are 40 years old and over are protected from discrimination and harassment when they are treated differently from younger employees.
Sexual Orientation (homosexual, heterosexual, bisexual): FEHA defines “sexual orientation” as heterosexuality, homosexuality, and bisexuality.
Military Veteran Status: FEHA defines “military or veteran status” as “a member or veteran of the United States Armed Forces, United States Armed Forces Reserve, the United States National Guard, and the California National Guard.”
Employers are prohibited from discriminating against its employees on the basis of these characteristics. Even if employees do not have these protected characteristics, employers cannot discriminate against them if they perceive the employee as having that protected characteristic or perceive the employee as being associated with a person with a protected characteristic.
If you believe you have been subject to harassment in the workplace, you should speak to an employment attorney immediately.
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