Understanding what harassment is is essential to navigating the complexities of workplace conduct. Many behaviors can create a hostile work environment that most people might not recognize, affecting people’s health and work life. Harassment is not only discrimination or sexual coercion. From microaggressions to harassment, knowing the various types of misconduct is the first step towards respectful workplaces. By understanding the nuances of verbal, nonverbal, physical, and visual harassment, you can identify the behaviors and take appropriate actions.

If you are being harassed, especially sexually, or if you are accused of harassment conduct, you need informed guidance. At Empower Sexual Harassment Attorneys in San Diego, we are committed to effectively giving full legal support to all parties. Contact us today for a confidential consultation, regardless of your situation, and take the first step toward a clearer understanding of your rights and responsibilities. Let us look at the different types of harassment in detail.

What Makes Harassment Illegal in California?

In a workplace, it is necessary to know the legal framework to understand unlawful harassment.

The Fair Employment and Housing Act (FEHA) defines harassment as conduct that must not only be offensive but also be “severe or pervasive” in nature. The courts interpret this definition by examining the “totality of the circumstances.” The totality of the circumstances looks at the nature and frequency of the unwelcome conduct and its severity. Further, in determining if the conduct was severe or pervasive, the court will look at whether the conduct was physically threatening or humiliating and whether the conduct unreasonably interfered with an employee’s work performance. This perspective acknowledges that one catastrophic incident or a series of less severe incidents can create a hostile environment.

For conduct to be unlawful harassment under the FEHA, it has to be based on a protected characteristic. Unwanted behavior, no matter how awful, usually does not count as a violation of the FEHA unless it is due to a characteristic of a protected trait. According to California, under the law, harassment claims focus on how the conduct impacted the victim, not the perpetrator’s motivation. A harasser could claim no harm was intended, yet the focus is on how the conduct affected the victim and altered the environment from the standard of a reasonable person. Moreover, California law applies the reasonable person standard from the perspective of a reasonable person belonging to the same protected class as the complainant, because experiences of harassment will vary depending on identity.

Core Protected Characteristics Under California’s FEHA

The central features of California’s anti-harassment laws are the protected characteristics under the Fair Employment and Housing Act (FEHA). While just being unpleasant will not make the employer liable, harassment is unlawful when it is directed at a person because he/she has one or more protected statuses and the harassment creates a severe or pervasive hostile environment.

The FEHA protects employees, job applicants, and certain contractors from harassment and discrimination in housing and work. It is illegal to discriminate against someone in employment or housing because of their:

  • Race
  • Religious creed
  • Color
  • National origin
  • Ancestry
  • Physical disability
  • Mental disability
  • Serious medical condition
  • Genetic information
  • Marital status
  • Sex
  • Sexual orientation
  • Age, which is 40 and over
  • Gender, gender identity, or gender expression
  • Military and veteran status

The classifications are singled out for protection because they have been a basis for discrimination in the past and present. Marginalization is detrimental both socially and in the workplace. It is also important to recognize that people can hold multiple characteristics that they find protected. For example, a Latina lesbian employee could be harassed because of her race, sexual preference, and the intersection of her race and sexual preference.

The various forms of harassment include:

Sexual Harassment

Sexual harassment can be broadly defined as inappropriate behavior of a sexual nature that impacts someone’s employment. According to California law, specifically the Fair Employment and Housing Act (FEHA), sexual harassment is categorized in two forms: quid pro quo or hostile work environment. These differences are important in identifying and resolving this behavior in the workplace.

  1. Quid Pro Quo (This for That)

Sexual harassment Quid pro quo occurs when employment decisions affecting an individual are based on submission to or rejection of unwelcome sexual conduct by that individual. It refers to soliciting sexual favors that are explicitly or implicitly conditioned upon:

  • A job benefit like hiring, promotion, favorable assignment, or continued employment
  • A threat of adverse action like demotion, unfavourable transfer, or termination

This type of behavior often occurs because of a power imbalance, and usually the perpetrator is a supervisor or someone with the power to affect someone’s terms of employment.

  1. Hostile Work Environment

A hostile work environment is defined as unwelcome conduct of a sexual nature that is severe or pervasive enough to change the terms and conditions of the victim’s employment and to create a work environment that is intimidating, offensive, or abusive. These behaviors do not necessarily involve requests for sexual favors in exchange for workplace benefits. Instead, it consists of a range of unwanted sexual behaviors, verbal, physical, or visual, directed at the victim.

Examples of this include:

  • Unwanted sexual jokes
  • Comments
  • Gestures
  • Display of sexual materials
  • Unwanted touching

The conduct must be sufficiently severe or pervasive, from the perspective of a reasonable person in the victim’s position, that it creates a hostile, offensive, or abusive workplace.

Gender-Based Harassment

Gender-based harassment is not sexual harassment. Gender-based harassment is rooted in hatred or hostility toward someone because of his/her sex, gender, gender identity, or gender expression. This harassment does not need to be sexual. When people act a certain way because of someone’s sex or gender, they are committing sex discrimination.

The difference is that gender harassment springs from dislike for a person because of their gender, rather than a desire for sexual contact or interest in a romantic relationship. Gender-based hate speech can take different forms. It can involve the use of slurs, insults directed at one sex that question or ridicule the competence or role of a sex, reinforcement of traditional gender roles and stereotypes, and hostility against those who do not conform.

Crucially, California law prohibits being harassed explicitly because of one’s gender identity and gender expression. This refers to transgender or gender nonconforming people or any other person who expresses gender. Harassment of this kind involves declining to use someone’s chosen name or pronouns, making remarks about a person’s gender presentation that they don’t like, and expressing vexation with their gender.

When this conduct is serious or long-term, it will either make fun of, undermine, or create an intimidating, hostile, vexatious environment based on gender, irrespective of any sexual element.

Racial and National Origin Harassment

Harassment based on race and national origin includes unwelcome conduct that insults or shows hatred towards an individual because of his/her race, color, national origin, or ancestry. Harassing someone due to these characteristics diminishes the individual’s respect and equal opportunity in the workplace.

Racism and hatred against people based on their race and national origin can take many forms. These can be overt and explicit or more subtle behaviors. Overt acts include direct forms of prejudice where members of the dominant group use racial slurs, epithets, and derogatory “jokes” to insult members of the targeted group. Overt acts also include displaying a noose or swastika. These express hatred against a protected characteristic in clear terms

However, harassment can also be done in other ways, such as:

  • Microaggressions, which are subtle, often unintentional forms of expression that communicate prejudice. They convey hostile, derogatory, or negative messages
  • Coded language that is not explicitly racial but has racial meanings
  • Job assignments, performance evaluations, or levels of scrutiny that differ based on an employee’s race or national origin

Furthermore, a company’s neutral policies or practices that hurt a member’s work or work environment that can be demonstrated not to be job-related and consistent with business necessity can also contribute to a hostile environment. The behavior’s impact is assessed from the perspective of a reasonable person of the same race or national origin, and whether this behavior creates a hostile or offensive work environment.

Religious Harassment

The unwelcome conduct, which belittles, shows dislike, hostility, or aversion to a person because of their religion, belief, observance, practice, or lack thereof. FEHA has a broad definition of religious creed that covers all aspects of religious belief, observance, and practice. This includes any religion recognized as legitimate and any other sincere belief based upon moral, philosophical, or ethical beliefs.

The harassing behavior could interfere with a person’s enjoyment of his/her right to practice or not practice religion in the course of that person’s employment. This could involve supervisors or colleagues:

  • Forcing their religious views onto others
  • Bullying a worker over their religious clothes, traditions, or food choices
  • Creating an environment where a worker feels compelled to join in or drop a spiritual practice

Harassment occurs when a conduct is unwelcome and has its basis in the person’s religion or lack thereof.

Refusal to offer reasonable accommodation for religious practices can also be linked to harassment. Simply denying accommodation could constitute religious discrimination. However, if the denial comes with comments that are hostile in nature, ridicule, or create a punishment environment, it could help build a case of religious harassment. As long as they do not create an undue hardship, an employer must reasonably accommodate an employee’s religion. Harassing the employee and making it awkward becomes aggravating in a harassment claim. Employers must balance employees’ rights to express non-compliant religious beliefs, which allow them different treatment, and the need to avoid a hostile work environment for other employees or third parties.

Age Harassment

Age harassment occurs when a person is mistreated at work because of their age. Workers 40 or older are protected from discrimination under the Fair Employment and Housing Act (FEHA). This harassment arises from harmful stereotypes of older workers, like their abilities, flexibility, tech skills, and ‘worth’ to the company.

Examples of age harassment may include age-related insults like calling employees “too old” or “dinosaurs” or suggesting they “cannot keep up” with younger workers. This can also involve constant pressure or subtle suggestions to retire, exclusion from training, professional development opportunities, or desirable projects based on assumptions about their age.

Assigning older workers tasks that are either insulting or not up to the challenge, as per stereotype and not actual ability, also contributes to harassment. When severe or pervasive, these unwanted behaviors can lead to a hostile working environment that diminishes older workers’ confidence and limits their advancement and dignity in the workplace.

Disability Harassment

Disability harassment is unwelcome conduct directed at a person because of the person’s actual or perceived physical disability, mental disability, medical condition, or genetic information. The Fair Employment and Housing Act (FEHA) protects individuals with various disabilities.

There are many ways that a person can harass a disabled person, including insults, jokes, or mocking someone’s disability. It also involves unwelcome questions about a person’s medical condition or disability, social ostracism, and failing to remove physical or procedural barriers that contribute to a hostile environment. Harassment can also happen if the employer or co-worker makes a request or seeks a reasonable accommodation for his/her disability.

When this behavior is severe or pervasive, it changes the conditions of their employment and creates an abusive working environment for a person with a disability.

Sexual Orientation Harassment

In California, the anti-harassment law protects LGBTQ+ workers to ensure a safe workplace. Harassment based on a person’s actual or perceived sexual orientation is prohibited under the Fair Employment and Housing Act (FEHA). This protection broadly encompasses heterosexuality, homosexuality, and bisexuality.

Sexual orientation harassment is conduct that degrades, shows hostility toward, or creates an adverse environment for an individual because of that person’s sexual orientation. Discriminatory behavior includes:

  • Name-calling, that is, the use of a homophobic or biphobic slur
  • Telling offensive jokes about LGBTQ+
  • Asking intrusive questions about a person’s private life or relationships
  • Threats, or intentional social exclusion

When severe or pervasive, this conduct undermines the dignity and safety of the employees, creating an intimidating, hostile, or offensive work environment that impedes the employee’s ability to do his/her job.

Pregnancy-Related Harassment

The Fair Employment and Housing Act (FEHA) significantly protects workers who are harassed at work because of their pregnancy, childbirth, breastfeeding, or other related medical conditions. This protective legal umbrella acknowledges that unwelcome behaviors associated with these conditions can create a hostile or discriminatory workplace.

The scope of protection includes more than just the pregnancy period. It also covers issues arising from giving birth, breastfeeding, and any illnesses linked to a pregnancy or delivery. An example of this includes severe morning sickness, gestational diabetes, or recovery from labor and delivery.

This harassment is not limited to overt discrimination, like being fired or being bypassed for promotion. Instead, it concentrates on behavior that does not necessarily produce a specific negative job action but is serious or common enough to change the conditions of employment and create an intimidating, hostile, or offensive work atmosphere.

Examples of this behavior could include:

  • Derogatory comments
  • Making fun of a mother
  • Stereotyping a pregnant employee or a new mother
  • Questioning an employee’s commitment to or ability to work because they are pregnant or a new parent
  • Exhibiting open hostility toward requests for legally required pregnancy accommodations or parental leave

Pregnant women and new mothers feel that this kind of behavior makes the workplace unwelcoming, unaccommodating, and highly stressful, and takes away their dignity and sense of safety and the ability to work properly.

Understanding Your Protection Against Retaliation

According to California law, retaliation is forbidden and occurs when an employer takes adverse action against an employee solely because that employee engaged in a “protected activity.” In its most basic form, the idea is to allow an employee to invoke their rights or report wrongdoing without fearing retaliation.

Actions considered protected are those that a worker takes that the law protects. These can include:

  • Making a complaint of harassment or discrimination in the workplace to the HR department, management, or an external agency like the Civil Rights Department (CRD)
  • Participating or cooperating in an investigation of a complaint
  • Opposing the discrimination that they experience or witness
  • Requesting a lawful, reasonable accommodation due to a disability or religion

Even threatening to file a charge or a complaint might be protected activity.

An employer’s conduct that negatively and materially affects the terms, conditions, or privileges of employment is said to be adverse. While clear examples include firing, demotion, significant pay cuts, and intentionally bad performance reviews, retaliation can also be more subtle. These changes could involve:

  • Unnecessary alterations to job hours or responsibilities
  • Increased unwarranted monitoring by superior officials
  • Separation from gatherings
  • Obstruction from projects
  • Denial of training
  • Creating an uncomfortable work condition after the protected action

The critical issue is that the action must be reasonably likely to deter the employee from engaging in protected activity.

To prove that an employer engaged in illegal retaliation, the employee must show a causal relationship between their protected activity and the employer’s adverse action, showing that the protected activity was a motivating reason for the adverse action. This link can sometimes be demonstrated by the timing of the adverse action following the protected activity or by evidence that the employer’s stated reason for the action is false (pretext).

Strong anti-retaliation laws are essential as they guarantee the effectiveness of all other workplace protection laws. They prohibit employees from being silenced or punished for coming forward and help ensure a legally compliant and safe workplace.

Employer Obligations and Your Path to Action

Employers bear a significant legal duty to prevent and deal with harassment. According to the Fair Employment and Housing Act, employers must take all reasonable steps to prevent harassment and immediately and effectively remedy it if it happens. This requirement entails a mandatory human resources policy and training for employees and supervisory staff.

Reporting harassment at your workplace typically begins internally. To prevent further harassment, you should abide by your employer’s anti-harassment policy. It is vital to document everything. Maintain detailed and contemporaneous records of incidents, including the date, time, and location, what was said or done, and who said or did it.

If internal reporting is ineffective or impossible, you can file an external complaint with a government agency. The state’s primary agency is the California Civil Rights Department (CRD), formerly DFEH. The CRD receives the complaint within a statutory time limit of generally three years from the day of the last harassing incident. You can also file with the Equal Employment Opportunity Commission (EEOC). A California employment law attorney specializing in harassment cases can be beneficial when it comes to navigating the administrative process and the timelines involved. By talking to a lawyer, you will know your rights. They will evaluate your cases and guide you in reporting and other litigation processes.

Potential Damages in a Hostile Work Environment Case

If an employee can successfully prove they were the victim of a hostile work environment, they will be entitled to recover damages for compensation and deterrence purposes. If the situation is bad enough, it can cause the employee to quit the job. The economic damage can cover lost wages or benefits. Nonetheless, a significant component of the damages is the non-economic damages, compensating the victims for the emotional distress, anxiety, and psychological impact they suffered.

In particularly egregious employer conduct, they could be punished to stop them or others from engaging in similar conduct. Besides, prevailing employees often recover their reasonable attorney’s fees and court costs. Courts could order changes to fix the hostile environment, including mandatory training or policy changes.

Depending on the facts and laws, the exact compensation may vary.

Hostile Work Environment vs. Discrimination

While general workplace discrimination and hostile work environment are often used interchangeably, they are distinct but related legal concepts. Actions or lack of actions that result in negative consequences to hiring, firing, or denying a promotion because of race, sex, age, or disability are discrimination. It refers to a choice or behavior that adversely impacts an employee’s job status because of their protected characteristic.

In contrast, a hostile work environment is created when an employee is subjected to unwelcome conduct, and the behavior based on a protected characteristic is so severe that it changes the terms and conditions of employment. To sum up, a hostile environment is a type of discrimination focused on the effect of a pattern of behavior on the environment as opposed to a tangible employment action.

A hostile work environment stems from severe or pervasive harassment, and harassment is a form of discrimination. Still, not every act of discrimination is harassment that creates a hostile work environment. Discrimination is the broader term under which harassment that makes the workplace hostile and other forms of unfair treatment based on any of the protected traits are classified.

Find a Sexual Harassment Attorney Near Me

Learning about the different forms of workplace harassment, like denigrating someone for their sexual orientation, being hostile to a pregnant employee, and illegal retaliation for speaking up, can be the first step toward creating a safe working environment for all. No employee should face harassment that damages dignity, creates fear, or prevents them from doing their work. When people recognize these forms of abuse, they can identify abuse and know their rights.

If you believe that you have suffered from any type of workplace harassment or you have been accused of harassment, you should seek legal assistance. Talk to us at Empower Sexual Harassment Attorneys in San Diego and let us help you navigate the situation. Contact us at 619-604-3027.