San Francisco Employment Law Firm Blog

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.

Generally, under California law, sexual harassment hostile work environment is an unlawful conduct at work place which involves unwelcome sexual advances of a co-worker or a supervisor, which may include sexual innuendos, offensive, inappropriate and sexual touching, and alike. Although these are typical examples of a conduct which is likely to be classified as sexual harassment, the offensive words or conduct directed at an employee because of his or her gender alone may create a hostile work environment even if those words or conduct are not sexual in nature. For example, even though an isolated incident of calling an employee a “bitch” will ordinarily not amount to harassment, using the word “bitch” repetitively in the presence of both men and women but in reference to women may constitute unlawful gender harassment, especially if coupled with other harassing conduct.

On the other hand, hostile words or conduct based solely on personal animosity are not 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 claims for sexual harassment. For instance, if a boss and a particular employee are not compatible and simply can’t get along, 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. Thus, one California court noted that 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.