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Both ADA (Americans with Disabilities act) and its California counterpart – FEHA (Fair Employment and Housing Act) cover disabled employees as well as employees whom the employer has regarded or treated as having had any physical or mental disability or medical condition that makes achievement of a major life activity difficult.

California Government Code section 12940(m) requires covered employers to make reasonable accommodations for the known physical or mental disability of an employee, unless undue hardship on the employer’s business would result. Under section 12940(f)(2) states that an employer may require any examinations of inquiries so long as they are job related and consistent with business necessity to determine its employees’ health condition for the purpose of compliance with disability laws.

The FEHA’s requirement of reasonable accommodations is triggered when the employer becomes aware of an employee’s disability, which may occur because it is an obvious disability, the employee has disclosed the condition,or the employer has obtained a medical opinion through a fitness for duty examination. The three primary results of a medical examination are: (1) the employee is qualified to perform the job without the need for any accommodation and poses no safety risk; (2) the employee will be able to perform his job with a reasonable accommodation; or (3) the employee is not qualified to perform the job due to his condition or due to a safety risk, and there are no reasonable accommodations that would enable for that worker to perform the essential duties of his job.

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Many workers intuitively believe that just because their co-workers act toward them in a rude or unfair way or just because they are not friendly to them, this is ground for harassment claim in court. It is important to remember, however, that under California law, a conduct is considered harassment only if it’s “sufficiently severe and pervasive to alter the conditions of the alleged victim’s employment.” This standard is quite high, and isolated incident of rude or inappropriate behavior usually don’t qualify as harassment.

Thus, in one recent case, the Second District court considered a situation where the worker sued her employer for harassment hostile/work environment after several of her co-workers teased her on several occasions in front of the customers and called her a “retard,” and refusing to change her schedule so that she could avoid working during the same shift as those employees who teased her. Young v. Exxon Mobil Corp. The court held that, as a matter of law, the evidence did not establish harassment sufficiently severe and pervasive to be actionable under the FEHA (Fair Employment and Housing Act) to alter the condition of Young’s employment.

Admittedly, it takes a more egregious conduct to constitute harassment. Many companies can be characterized by being stressful workplaces with office politics, “backstabbing,” and other manifestations of people’s dissatisfaction of being forced to work together, but to constitute harassment, these working conditions must clearly be beyond the typical disagreements, and conflicts between co-workers, and a common stress that is brought about by most jobs.

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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.

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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.

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Many female employees are afraid of telling their boss about their pregnancy. They are concerned about being perceived as less capable and desirable employees and about being terminated. This is especially likely to be the case if a female worker has a well-paying job and cares about her place in her workplace and her career advancement in the near future.

However, the reality is that there are simply no advantages to not disclosing pregnancy to the employer. First, sooner or later the employer will find out that the employee is pregnant as the pregnancy will become visible. Secondly, informing your employer that you are pregnant and have a difficulty in performing certain duties of your job, you may be entitled to certain protections, such as reasonable accommodations to your condition.

If you are concerned about pregnancy discrimination, this is yet another reason to put your employer on notice that you are pregnant as soon as possible. Employers who are sued for pregnancy discrimination ordinarily argue that they had no knowledge of the suing employee’s pregnancy. This is often grounds for dismissal of the discrimination claim. By notifying your employer of your pregnancy promptly, you take this argument away, creating a further legal protection for yourself. After all, the more risky the position that the employer puts itself in when planning to terminate you, the less likely you are to be terminated.

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Unfortunately, it is not uncommon for supervisors to use racial slur and stereotypes as references when criticizing an employee’s performance or otherwise. These comments can be very innocent or obviously degrading and offensive, clearly showing the manager’s hostility towards a given race.

To prove racial discrimination, however, it is not enough to simply show that the employer used racist slur toward a particular employee (although this can amount to racial harassment, if sufficiently severe and pervasive). To prove discrimination, there must be a link between the racists words and the adverse employment action that the manager takes against an employee, such as firing, demotion, or transfer to a least desirable position. Thus, to be evidence of discrimination, the supervisor’s comments must be contemporaneous with the termination or causally related to the termination decision making process.

racial harassment at California workplace

This means, for example, that a manger’s racist joke six months prior to deciding to terminate an employee can be hardly considered to be evidence of racial discrimination. Neither judge nor jury will likely be convinced that just because your supervisor made a racist remark in your presence months or longer before your termination, the reason for your termination was racial hostility, if that much time has elapsed between the two events. On the other hand, using racial slur toward an employee while emphasizing his poor performance, such as “You Mexican’s/Blacks/any other ace are all lazy” and then terminating him shortly thereafter is likely to be evidence of racial discrimination.

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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.

san francisco harassment lawyer

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.

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In the absence of an agreement otherwise a worker in California is generally presumed to be an “at-will” employee. This means that an employee can be terminated for any reason, no reason or arbitrary reason as long as it’s not an illegal reason (such as discrimination, harassment, retaliation, etc.) Once an employee establishes that he/she might have been terminated for unlawful reason, an employer will be required to defend its termination by demonstrating “just cause.” Employers covered by collective bargaining agreements are also typically required to demonstrate “just cause” for any disciplinary action involving a covered employee. Thus, it is important to understand the “just case” term of art. In determining whether the employer had just cause for terminating an employee, the following questions should be asked:

* Did employer’s action violate any statute or policy?

* Did the company investigate to determine whether the employee actually violated the rule for which he was disciplined or terminated?

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In addition to unemployment benefits compensation for those workers who are not disabled, the unemployment insurance code of California provides for disability compensation under Unempl. Ins. Code sections 2601 and 3272. Unemployment compensation disability benefits are paid from the disability fund. A worker is deemed disabled on any day in which, because of physical or mental condition, he was unable to perform his regular or customary work. Disability may include illness, injury, pregnancy, childbirth, infection with a communicable disease, acute alocoholism, or acute drug-induced illness.

The requirements for eligibility for disability benefits generally include (Unempl. Ins. Code sec. 2627):

(a) Making a claim;

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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.

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