San Francisco Employment Law Firm Blog

Under California law, to be actionable/unlawful the harassment at workplace must be sufficiently "severe and pervasive." This means that, generally isolated comments and incidents, unless egregious, do not rise to the level of sexual harassment as defined by FEHA (California Fair Employment and Housing Act). But, what about staring? Can staring be grounds for a sexual harassment claim? On one hand, staring might be a very subjective complaints, as some people might think that someone is staring at them when in fact no one does. On the other hand, overt staring might be very threatening and indicate a kind of obsession and other threatening behavior.

The California Court of Appeal confronted the issue of whether staring can be considered sexual harassment in Birschtein v. New United Motor Manufacturing, Inc. (2001). In that case, a forklift driver approached the female assembly worker and asked her out several times. After she refused his propositions, he started sharing his explicit sexual fantasies about her, and drive around and look for her when she was not around. After the claimant complaint about harassment to the management, the forklift driver stopped speaking to her and never spoke to her again. Instead, he began staring at her. He would drive to her work station five or more times per day and stare directly at her for at least several second each time. He would also sit behind the forklift and stare at the plaintiff for five to ten minutes at a time.

When the female employee sued her employer for sexual harassment and failure to prevent harassment, one of the arguments that the defense attorneys had was that staring is not a sufficiently severe and pervasive behavior to constitute harassment as a matter of law. The court disagreed. In its holding, the court suggested that staring is particularly likely to be actionable as harassment if there is a prior history of prior acts between the harasser and the victim of harassment that would cause the victim to feel threatened and intimidated when the harasser, who engaged in the more overt acts of harassment, engages in staring in retaliation for the victim's complaints. In other words, the court seemed to suggest that while staring alone might not be sufficient to constitute harassment, when combined with other (prior acts) by the same harasser, it may be sufficiently severe and pervasive to constitute sexual harassment.

Most employers, especially larger companies include detailed provisions on their anti-harassment at workplace policy. These policies generally serve several purposes. First, the employers are required to implement various harassment training and prevention procedures at workplace. Secondly, these policies are designed to provide an opportunity for employee to address and eliminate harassment at workplace. Lastly, and not less importantly, existence of those policies in the employee handbook is commonly used as a strong defense against sexual harassment, racial harassment and other hostile work environment claims, if the employee claims that he/she was harassed but failed to use the grievance procedures as provided by the employer's harassment policy.

However, the anti-harassment policies and the grievance procedures that the employee who believe to be harassed are encouraged to follow often have a fundamental flaw that entire defeats their use - many harassment manuals provide that the employee who feels that he/she is harassed should complain to his/her immediate supervisor or manager. The problem is that the immediate supervisor is often the source of harassment. If that's the case, that kind of policy will neither provide effective help to the employee, as it goes without saying that complaining to the source of harassment about his own harassment would be pointless.

Moreover, the employee's failure to use anti-harassment grievance procedures of the company in this case will likely not serve as a valid defense to the employer. As the United States Supreme Court stated in a leading case on harassment: "the employer's grievance procedure apparently required an employee to complain first to her supervisor. Since in this case the supervisor was the alleged perpetrator, it is not altogether surprising that the victim of the harassment failed to invoke the procedure and report her grievance to him. The employer's argument that the harassed employee's failure should insulate it from liability might have been substantially stronger if its procedures were better calculated to encourage victims of harassment to come forward..." Meritor Savings Bank, FSB v. Vinson.

It is a common tactic for an employer to defend an employee's claims of sexual harassment at workplace by arguing that because the conduct in question towards the victim wasn't "sexual enough," she cannot state a valid claim for sexual harassment. This is exactly what happened in Birschtein v. New United Motor Manufacturing, Inc. (2001). In that case, a forklift driver's conduct included asking a female co-worker (Birschtein) out on a date 3-4 times, telling her that he had sexual fantasies about her in the most explicit detail, staring at her, and according to co-workers, driving around and looking for her when she was not around.

The defendant employer argued that its conduct did not amount to actionable sexual harassment because it was not "based on sex." The court disagreed. Relying on prior, well established case law on sexual harassment, the Court stated that sexual harassment hostile work environment need not have anything to do with sexual advances. Hostile work environment shows itself in the form of intimidation and hostility for the purpose of interfering with an individual's work performance.

Hostile environment sexual harassment may occur even if gender is a substantial factor in the discrimination and that if the claimant had been a man, she would not have been treated in the same manner. In other words, to constitute impermissible discrimination, the offensive conduct is not necessarily required to include sexual overtones.

The California Fair Employment and Housing Commission (FEHC) defines "harassment" as:
- verbal harassment, such as epithets, derogatory comments or slurs (or repeated sexual comments and jokes or prying into one's personal affairs);
- physical harassment, such as unwanted touching, rubbing against someone, assault and physical interference with movement or work; or
-visual harassment, such as derogatory cartoons, drawings or posters, lewd gestures or leering.

California Fair and Employment Housing (FEHA) generally provides a broader protection to employees in California than Title VII in the following aspects:
- it specifically prohibits "harassment" (and retaliation) as well as "discrimination";
- it extends protection to independent contractors (persons providing services pursuant to a contract) as well as employees and job applications. Cal. Gov. Code 12940(j)(1)
- the FEHA ban on harassment extends to all employers (unlike Title VII, which applies only to employers of 15 or more employees, or the FEHA's general ban on discrimination, which applies only to employers of five or more employees). Cal. Gov. Code 12940(j)(4)(A).
- the FEHA ban on harassment extends to nonprofit hospital and health care facilities affiliated with or owned by religious entities.
- and under the FEHA, liability for harassment extends to any employee of a covered employer.

For these reasons, among others, most employees bases sexual harassment and other harassment claims primarily on the FEHA and only secondarily on Title VII.

It is common for an employee who is subjected to discriminatory conduct or harassment at workplace in California to be afraid to complain about the harasser to his superiors for fear of retaliation and losing a job. However, an aggrieved employee simply has nothing to gain by keeping quiet. In most cases, the harasser's unlawful conduct not only doesn't stop, but becomes progressively more unacceptable and egregious, causing more stress to the victim of potential discrimination and harassment.

Even more importantly, by not complaining, and employee not only doesn't allow the employer to address discrimination and harassment and possibly discipline the harasser, but the victim virtually forecloses possibility of having viable legal claims for discrimination and harassment in the future. Unless the harasser is the aggrieved employee's supervisor, and employer is not liable for discrimination and harassment, if the employer did not know or had not reason to know that such discrimination or harassment took place.

Therefore, if you believe that you are subjected to unlawful discrimination and/or harassment at workplace, it is crucial that you complain about the conduct in writing to your human resources department and higher if necessary. In your complaints, you should outline in detail the facts and the circumstances of what you believe to be an unlawful conduct toward you at workplace, requesting prompt, thorough, formal investigation of your allegations as required by law.

Sexual orientation discrimination involves treating an employee differently because of his or her sexual orientation (being gay, lesbian, or bisexual). In California, homosexual employees are protected by the same laws that protect all other workers against sexual harassment. That is, it is unlawful to harass or discriminate against employees because of their sexual orientation. This means that an employer who fails to hire, promote or otherwise provide equal conditions and privileges of employment to a homosexual employee because of his or her sexual orientation violates California anti-discrimination and anti-harassment laws and is subject to liability.

Some of the common examples of sexual orientation discrimination and harassment include being treated differently after your employer or co-workers find out about your sexual orientation, being harassed by comments of jokes about your mannerisms or sexual activity, not receiving the same compensation and bonuses as straight employees.

If you work in San Francisco, Bay Area, or Sacramento Areas, and you believe that you are subjected to sexual or sexual orientation discrimination and harassment, an experienced employment lawyer may be able to help you and guide you through the stressful time of dealing with sexual harassment at workplace the right way. The San Francisco employment lawyer Arkady Itkin will be glad to discuss your concerns with you free of charge and without any obligations. We will then be able to determine whether we can help you protect your rights and prevent further harassment.

An individual harasser at workplace in California, whether he / she is a co-workers or a supervisor, may be personally liable for sexual harassment under the Fair Employment and Housing Act (FEHA). This means that the employee who is a victim of sexual (or other) harassment, may be able to pursue legal action against both his or her employer and the individual who causes harassment and creates hostile work environment.

FEHA defines "supervisor" as an individual who has either (1) the authority to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward or discipline other employees; or (2) the responsibility to direct other employees, adjust their grievances, or effectively recommend such action on grievances, provided that the exercise of the authority or responsibility requires the use of independent judgment. Cal. Government Code section 12926(r).

For more information about FEHA please visit the site of California Department of Fair Employment and Housing.

There are various, although equally despicable and unlawful kinds of sexual harassment that employees may be subjected to at workplace. One type of sexual harassment may take the form of an economic "quid quo pro" where a supervisor's requests for sexual favors are linked to the grant or denial of job benefits, such as getting or retaining a job, a receiving a favorable performance review, salary raise, promotion, bonus, etc. The typical case involves some for of sexual advance or proposition by a supervisor with an express or implied threat that if the employee refuses, he or she will be terminated or demoted, or lose other job-related benefits; or, the employee may be promised better treatment, such as a promotion, transfer, raise or favorable recommendation, if the employee submits to the sexual advances.

The supervisor's requests for sexual favors in exchange for a certain benefit do not have to be express to constitute unlawful sexual harassment. It is enough that the individual making the unwelcome sexual advance was the victim's supervisor, and that a link to employment benefits could be inferred under the circumstances. Such circumstances might include implied statements or simple the fact that the supervisor persists with demands for sexual favors after plaintiff has declined or stated that he or she is not interested in any kind of sexual interaction with the supervisor.

Thus, in one case a female employee was asked to lunch by her supervisor for the sole and express purpose of discussing his upcoming evaluation of her work and possible recommendation of her for a promotion. He allegedly told her that he continued success and employment at the company were dependent upon her agreeing to his sexual demands. His demand amounted to an additional "condition of employment" imposed upon her because of her gender in violation of Title VII of the Civil Rights Act. Tomkins v. Public Service Elc. & Gas Co. (1977)

Physical violence at workplace is more common than we would like to believe. Recently, a client approached me describing the outrageous conduct of his former employer - while being notified of his termination, his employer, during a mild verbal confrontation violently pushed him against a furniture store in his office, which resulted in severe leg and back injury to the terminated employee and disability. That was a classic case of battery at workplace.

Battery requires a showing that (a) the victim was touched with an intent to harm or offend victim; (b) the victim did not consent to be touched; and (c) the victim was harmed or offended by the conduct in question. Even a touching that doesn't inflict physical pain would be considered "offensive" if it would have offended a reasonable person's sense of personal dignity. Act of sexual harassment which involve touching may also be actionable as battery, assault and intentional infliction of emotional distress.

Under the doctrine of respondeat superior, the employer is vicariously liable for torts committed by one employee upon another if those acts occurred during the "course and scope of employment" (or later ratified by the employer. In those cases, the basic question is whether the employee's conduct "may fairly be regarded as typical of or broadly incidental to the enterprise undertaken by the employer. The logic behind holding responsible for the acts of violence at workplace is that losses fairly attributable to an enterprise - those which foreseeably result from the conduct of the enterprise - are allocated to the employer as a cost of doing business.

By way of illustration, in one case a supervisor pointed a gun at employee and threatened to kill him because the employee refused to sign a termination notice as requested. This constituted a "willful physical assault by the employer within the meaning of California Labor Code section 3602 because the supervisor's conduct occurred during the course and scope of employment and also because Employer later ratified the supervisor's conduct. Herrick v. Quality Hotels, Inns & Resorts, Inc. (1993).

An issue often arises in connection with the off-duty conduct of employees of whether an employee can be disciplined or even discharged by his employer based on such off-duty conduct. This answer to this question will often depend on the facts surrounding the employee's conduct. Where the conduct is offensive and egregious, however, the courts will often rule in the employer's favor.

In a recent New York case, for example, a male nurse employed in a hospital visited the hospital while on vacation. The employee, who was intoxicated, got into a violent scuffle with security guards at the hospital and was terminated. The employee brought action for wrongful termination arguing that his off-duty conduct should not have been considered by the jury. The court disagree, however, holding that his off-duty conduct was relevant to the issue of whether he posed a threat to the safety of others.

Employers should avoid taking adverse action against the lawful off-duty conduct of employees unless:

* The conduct represents a conflict or potential conflict of interest (e.g., working for a competitor or engaging in self-employment in competition with one's employer).
* The conduct impairs an individual's job performance (e.g., drop in an employee's productivity because a second job makes the employee too tired to work at expected performance levels).
* The conduct puts the employee in a position where his judgment or authority can be compromised (e.g., a manager dating a subordinate and having authority for employment decision affecting that individual.) It is important to note, however, that the adverse employment action against the manager should be based on job-related factors and not his off-duty conduct. Such job-related factors may include a loss in confidence in the manager's ability to manage the subordinate; on-the-job conduct, such as spending excessive time with the subordinate with no business justification; or making decisions that negatively affect other employees and could be in violation of the company's sexual harassment policy (e.g., showing favoritism with respect to a promotion).

It is not unlikely for employees to have their words and/or conduct to be misinterpreted by their co-workers and have their colleague accuse them of sexual harassment without sufficient reason. An employer has a duty to investigation all sexual harassment allegations. Failure to do so may subject the employer to liability for both sexual harassment and failure to prevent sexual harassment. However, employee accused of harassing often feel helpless and without remedy to prove their innocence.

An employee who is falsely accused of sexual harassment is not without remedy however. That employee is also entitled to a prompt, thorough investigation of the facts and evidence of any alleged harassment. If the employer fails to conduct thorough investigation and instead summarily terminates a worker, he / she may have a defamation claim against the employer. Generally, false complaints of harassment and discrimination are conditionally privileged and do not constitute defamation, unless those accusation are made with malice. To show malice on the part of the accuser, the accused may be able to show whether the accuser had a history personal issues/hostility toward the accused, a pattern of unfounded complaints against co-workers, or any other ulterior, personal motive against the accused. If malice is shown, the liability for defamation of character may be attached to both the employer and employee personally.

If you believe that you have been a victim of defamation at workplace, contact Arkady Itkin - San Francisco employment lawyer to discuss your claims.

Many people are used to believing that sexual harassment hostile work environment is an unlawful conduct at work place which involves unwelcome sexual advances of a co-workers or a supervisor such as sexual innuendos, offensive touching, and alike. Although those are typical examples of a situation which is likely to be classified as sexual harassment, the offensive words or conduct directed at an employee because of his or her gender may create a hostile work environment even if those words or conduct are not sexual in nature. For example, using a word “bitch” repetitively in the presence of both men and women but in reference to women may constitute unlawful gender harassment.

On the other hand, hostile words or conduct based solely on personal animosity is no actionable as sexual harassment in California even if the victim is of the opposite gender. As the court pointed out in once case – “Unfair, overbearing, or annoying treatment of an employee, standing alone, cannot constitute a sex discrimination claim. In other words, a conduct that is based on personal agenda or anger and not on gender is not grounds to claim sexual harassment. For instance, if a boss and a particular employee are not compatible, it would not be sexually discriminatory to harass employee on that basis. In other words, sexual/gender harassment requires showing that the employee was treated a certain way because of his or her gender. For example, where the employee was the only woman on the workforce, her coworkers’ acts of insubordination, dissemination of untrue rumors about her, and aspersions on her competence may contribute to a hostile work environment based on sex.

The employer may assert a defense against liability for sexual harassment claim by showing that the employer exercised reasonable care to prevent and correct promptly any harassing behavior, and that the employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer to avoid harm otherwise. This corrective opportunities commonly include a section in the employee handbook explaining the procedures of complaining about harassment and the employer’s express commitment to address those complaints as soon as possible.

It is commonly known that sexual harassment at workplace involves unwelcome acts of sexual nature by a co-workers or a supervisor, such as unwelcome touching, repeated unwanted propositioning, conditioning employment or promotion on sexual favors, etc.

Offensive conduct, however, need not be sexual in nature to create a hostile work environment in the workplace. Hostile non-sexual conduct (or language) directed at an employee because of his or her gender may create an actionable hostile environment. A pervasive pattern of abuse violates Title VII even if not motivated by sexual desire to drive women out of the organization. Rude overbearing, loud, vulgar and generally unpleasant comments by a male supervisor toward female subordinates, coupled with physically aggressive (though non-sexual) actions, may constitute sexual harassment if male subordinates were treated with proper respect. Interestingly enough, the fact that there were more women than men in the office does not make a difference.

A non-sexual conduct that singles out an employee based on gender may also be actionable and constitute sexual harassment/hostile work environment . In one California case, a hostile work environment was shown by evidence that male police officers engaged in overtly hostile acts toward female police officer, including stuffing her shotgun barrel with paper so that the weapon would explode if fired, spreading untrue rumors about her abilities, singling her out for unfavorable work assignments and shifts, making false complaints about her performance, and even threatening to disrupt her wedding.

Even staring, coupled with other factors, can constitute sexual harassment hostile work environment. In one case, a female employee refused a male co-worker’s several requests for a date (which included divulges lewd fantasies about her). When she complained to her supervisor, the coworker stopped talking to her, but started staring at her in an intimidating manner. In light of his prior conduct, the coworker’s repeatedly staring at the female employee and the employer’s failure to stop it despite the employee’s complaints could constitute actionable hostile environment sexual harassment according to court.

In sum, the California law and the recent rulings by courts clearly indicate that the conduct does not have to be sexual in nature in order to constitute hostile work environment sexual/gender harassment.