Articles Posted in Hostile Work Environment

It has been held in California that to constitute hostile work environment at workplace based on racial or other kinds of harassment, the harassing conduct must be “sufficiently severe and pervasive.” This means that generally, a single discriminatory comment or isolated incidents of slur by a co-worker cannot be actionable as harassment or discrimination as a matter of law. However, the courts recognize the fundamental difference between the impact that a co-worker’s actions or words have an a potential victim of harassment and discrimination and the words/actions of a manager or any other person in a position of power over an employee.
The leading case on this issue is Dee v. Vintage Petroleum, Inc. (2003). In that case, the court pointed out that while one racial comment is insufficient as a matter of law to establish a claim for hostile work environment, there is neither a threshold “magic number” of harassing incidents that gives rise to employer’s liability… nor a number of incidents below which a claimant fails as a matter of law to state a claim. The court noted however that where the act committed by a supervisor, the result may be different. Because the employer cloaks the supervisor with authority, the supervisor’s conduct is normally attributed directly to the employer.

The effect of the offensive and unlawful conduct of a person who acts on behalf of the company and who is in a position of superiority has a much more dramatic and adverse impact on an employee creating a far more abusive workplace environment that would otherwise have been created by co-worker. The court further recognized that even an isolated incident of racial slur may not actually be “isolated” because it explains the manager’s motivation for creating abusive work environment

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.

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.

sexual orientation discrimination at workplace

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.

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