This month's topic is harassment. We have observed this is an area where there is confusion by some employers. When speaking of harassment, most employers think of sexual harassment. Yet, sexual harassment is only one type of prohibited harassment. Under current California law, harassment occurs when:
- An employee is subjected to verbal or physical conduct based on any of the classifications protected by the Fair Employment and Housing Act (Race, Religious Creed, Ancestry, Gender, Sexual Orientation, Physical Disability, Mental Disability, Medical Condition or Marital Status);
- The conduct is unwelcome; and
- The conduct is sufficiently severe or pervasive as to alter the conditions of the employee's employment and create an abusive working environment.
The type of harassment is generally referred to as abusive work environment harassment. What constitutes an abusive environment is based on what a reasonable person in the same position as the harassed employee would consider abusive. An abusive working environment can be proven based on a single incident or on a pattern of conduct. Factors which are taken into consideration are:
- The severity - How bad was the conduct?
- The frequency - How pervasive is it?
- Whether it interferes with the employee's work performance.
- Whether it affects the employee's psychological well-being.
Regarding sexual harassment (and only sexual harassment), there is a second type of harassment, which is known as quid pro quo sexual harassment. Quid pro quo harassment occurs when a manager or supervisor conditions a job, promotion or other job benefit on sexual favors by the employee. It should be noted that there is a difference between sexual harassment and gender harassment, even though both relate to a person's gender. Gender harassment need not involve sexual conduct of any kind. Gender harassment involves conduct, whether blatant or subtle, that discriminates against a person solely because of that person's sex.
California employers are required by law to have an anti-harassment policy and to disseminate that policy to their employees. This anti-harassment policy should include a procedure for the reporting of harassment claims without fear of retribution. California employers are also required to thoroughly investigate harassment claims. What constitutes a thorough investigation will be discussed next month.
ESKRIDGE & ASSOCIATES, Attorneys at Law, may be contacted by phone (310/792-7021), by fax (310/792-7022) or by e-mail (geskridge@ealaw.net or cbyrnes@ealaw.net). Please visit our web site at ealaw.net or employmentattorneys.net.