Non-Sexual Workplace Harassment in California

The California Fair Employment and Housing Act prohibits both sexual harassment and non-sexual harassment in the workplace.¹ Non-sexual workplace harassment means a hostile work environment in which an employee is harassed on the basis of categories such as:

• Race,
• Religion,
• National origin or ancestry,
• Disability,
• Immigration status,
• Sexual orientation or gender identity, and/or
• Age.²

California harassment law is closely connected to California workplace discrimination law. Thus, it protects workers from harassment based on the same categories that can support a workplace discrimination claim.

Below, our California employment law attorneys answer the following frequently asked questions about non-sexual workplace harassment in California:

• 1. Can California employees sue their employers for harassment?
• 2. What is non-sexual workplace harassment?
• 3. What recourse does a harassed employee have?
• 4. What should California employers do to prevent harassment?

If, after reading this article, you have further questions, we invite you to contact us at Shouse Law Group.

1. Can California employees sue their employers for harassment?

California employment law prohibits harassment in the workplace on the basis of any of the following categories:

• • • Race,
    • Religion,
    • Color,
    • National origin,
    • Ancestry,
    • Physical or mental disability,
    • Medical condition or genetic information,
    • Marital status,
    • Sex,
    • Gender,
    • Gender identity or gender expression,
    • Age,
    • Sexual orientation, or
    • Military/veteran status.³

(You may notice that harassment on the basis of one’s political beliefs is not included in that list. Political harassment is not illegal in California. However, retaliation by your boss for your political activities outside of work IS prohibited by California employment law.)

Here are some examples of behavior that could count as non-sexual harassment under the California Fair Employment and Housing Act:

Example: Mustafa is an engineer from Pakistan. Many of his co-workers are from India (a country that has a history of bad relations with Pakistan).

Several of Mustafa’s Indian co-workers make repeated comments about how Pakistan is “full of terrorists” and ask Mustafa when “his people” are going to fix things in that country. On the anniversary of the September 11 terrorist attacks, these co-workers ask Mustafa if he is going to celebrate.

Mustafa tells his supervisor about this behavior, but she does nothing to stop it.

Mustafa may have a workplace harassment claim against his employer because he has arguably experienced national origin harassment at work.⁴

Example: Bill is in his late 60s and is the manager of a bookstore. Two of his sales staff are in their 70s. Bill regularly treats them in dismissive, insulting ways and gives them worse work assignments than the younger employees. However, Bill never specifically mentions their age.

The older employees may have a claim against Bill and the bookstore for age-based workplace harassment.

The two examples above illustrate several important points to remember about non-sexual workplace harassment under California’s Fair Employment and Housing Act:

• First, it is possible for the perpetrators of racial/national origin/religious etc. discrimination to be members of ethnic or national-origin minorities themselves. (Mustafa was harassed on the basis of his national origin by coworkers who were members of a different ethnic minority group.)
• Second, non-sexual harassment can occur even if the harasser never specifically mentions the characteristic that is the basis for the harassment. If an employee is singled out for harassing treatment based on a protected status, then that is enough to support a claim for workplace harassment. It does not matter whether racial/ethnic slurs or similar language are used.
• Finally, it is possible for a harasser to share the protected status that is the basis for the harassment. In the example of Bill above, Bill was an older worker himself. But that does not mean Bill cannot commit age-based harassment against other older employees.

2. What is non-sexual workplace harassment?

Harassment on the basis of race, religion, national origin, disability, etc. is what is known as “hostile work environment” harassment in California workplace harassment law.⁵

“Hostile work environment” is one form of harassment recognized under California labor law. (The other form, “quid pro quo” harassment, is relevant only in cases of sexual harassment.)⁶

The legal definition of hostile work environment harassment under the California Fair Employment and Housing Act is:

1. Discriminatory intimidation, ridicule or insult (workplace bullying, essentially),
2. That is either severe or pervasive enough to alter the conditions of employment and create an abusive working environment for the person being harassed.⁷

In most racial, religious, etc., harassment cases, the key issue is whether the bullying behavior is severe or pervasive enough to rise to the level of workplace harassment. The behavior does not have to be both severe and pervasive. But isolated and minor incidents will not meet the California legal definition of harassment.⁸

Example: Kelly is an African-American sales representative at a technology company.

One day her white supervisor tells her that her hair is too curly and that he thinks she would make more sales if she would straighten her “nappy” hair. Kelly is upset by this comment, and her supervisor never raises the issue again.

The supervisor’s comment was offensive. But it was not part of a pattern of pervasive racial harassment, and it probably is not severe enough to rise to the level of harassment on the basis of race in California.

BUT

Example: Let’s say Kelly gets a promotion that many of her colleagues have been competing to get. Not long after she gets the promotion, she finds an envelope on her desk. It contains a graphic photograph of an African-American being lynched and an unsigned note telling her to “watch her step.”

Kelly tells her supervisor about the note. But his response is to roll his eyes and say, “What can you do? People are jealous of you around here.”

Kelly may have a viable claim for workplace harassment on the basis of race. Even though this was an isolated incident, it involved threats to her physical safety and may be severe enough to constitute racial harassment.

As the second Kelly example above shows, non-sexual harassment under the California Fair Employment and Housing Act does not have to be perpetrated by a supervisor. It is possible for coworkers to harass one another on the basis of race, national origin, etc.⁹

However, if the racial, religious, sexual orientation, national origin, etc. harassment is committed by someone other than a coworker, then the employer is not strictly liable for the harassment.

This means that an employee can only successfully sue the employer for damages if s/he can show that the employer handled the harassment negligently. An employer is negligent if it knew or should have known about the non-sexual harassment, but failed to take appropriate corrective action.¹⁰

3. What recourse does a harassed employee have?

Our California labor and employment lawyers recommend that employees facing harassment on the basis of a protected category like race, age, or disability take the following steps:

1. Tell someone in the organization about the harassment–either a supervisor or a member of the Human Resources Department.
2. File a complaint with the California Civil Rights Department (“CRD”), within three (3) years after the harassment occurs. This step is required before one can file a workplace harassment (sexual or non-sexual) lawsuit in California.
3. Wait for the CRD to issue a “right to sue” notice. Once the notice is issued, the employee and his/her California employment attorney may file a civil lawsuit against the non-sexual harasser and/or the employer seeking monetary damages, within one (1) year after the right to sue notice is issued.¹¹

Sometimes employees are afraid to take action if they are harassed because they worry that they will be fired. But in fact, the FEHA strictly forbids any retaliation (including wrongful termination) against employees who exercise their rights under California harassment law or participate in harassment investigations.

4. What should California employers do to prevent harassment?

It is a rare California employer that actually condones racial, religious, national origin, or other protected category harassment in the workplace. Most employers would like to do whatever it takes to prevent harassment of any of their employees–but many also do not know what the best steps are for doing so.

Our California labor and employment attorneys advise our employer clients to take the following five steps to prevent harassment in the workplace:

1. Create a written policy against harassment on the basis of race, religion, national origin, disability, age, medical condition, sexual orientation–as well as sexual harassment;
2. Communicate the anti-harassment policy to all employees;
3. Train supervisors on the anti-harassment policy;
4. Post the California Civil Rights Department (CRD’s) poster on harassment in a prominent place; and
5. Distribute the CRD brochure on harassment to all employees and supervisors.

Of course, even taking all these measures is not a guarantee that incidents of workplace harassment will not occur. But even if they do, employers can minimize the damage from a harassment incident with an intelligent and thorough response to any harassment complaint.

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