Posted on April 23rd, 2018
As an employer, do you know your states workplace harassment laws?
This article explains what you need to know about workplace harassment laws as an employer in California.
With the #MeToo movement still going strong, it’s more important than ever to know the laws concerning harassment.
Especially when you’re dealing with harassment in the workplace. But the laws differ depending on which state you reside in.
To make sure that you are in compliance and to ensure you don’t become a victim yourself, here’s everything you need to know about workplace harassment laws in one of the toughest states for employers, California.
What Harassment Is
There are certain behaviors that you as an employer can not accept from your employees, especially your supervisors.
They have to treat each other with a certain amount of respect in the workplace and make sure their interactions do not cross over into employee misconduct.
Let’s start off by understanding exactly what harassment is.
Workplace harassment could be motivated by bigotry, personal gratification, and unkindness. It can include inappropriate jokes, derogatory comments, and even innuendo.
Physical harassment like unwanting touching or hitting is also not okay in the workplace. Neither are verbal or implied threats.
Visual harassment like inappropriate posters or signs is not allowed in the workplace. And of course, there’s no aggressive behavior or repeated requests for sexual favors allowed.
Lastly, you cannot show favoritism based on a protected characteristic.
Who is Protected from Workplace Harassment Laws?
There have been several laws passed in California to protect workers from every walk of life from workplace harassment. Let’s take a look at a few of them.
Age Discrimination Act
This law protects all employees over the age of 40. You cannot harass or discriminate against anyone over age 40 simply because of their age.
Title VII of the Civil Rights Act of 1964
Title VII is a federal law. It prohibits discrimination against employees based on race, color, religion, sex, or national origin.
While this law doesn’t explicitly prohibit harassment, the courts interpret the unlawful discrimination to include harassment.
The Fair Employment and Housing Act
Known as FEHA, it’s a California state law. This act governs the many types of discrimination and harassment often faced by employees, job applicants, unpaid interns, and even some independent contractors.
The California Constitution
The California Constitution prohibits any place of employment from discriminating against someone based on their sex, race, creed, color, nationality, or ethnic origin.
However, most cases are tried using TItle VII or FEHA.
The Americans with Disabilities Act
The Americans with Disabilities Act is designed to protect those with physical and mental disabilities from being unfairly discriminated against or harassed based on their disability.
Borderline Harassment
Not all cases turn out to fall under the umbrella of workplace harassment.
Let’s take a look at a few examples of common employee complaints that don’t seem to technically fall into the legal definition of workplace harassment.
Berating Employees for Poor Performances
If you or one of your supervisors berate the team for not getting their work done on time they may not like it but its not against the law. Since you are motivated by poor work performance of the group and are not focused on the fact that they fit into a certain group (like women or minorities, elderly etc,) this is may just fall under you being a tough boss.
In this case, there are no laws being broken.
Teasing a Sick Employee
A co-worker has been out sick with a cold. Since they were out for over a week, the employee gets teased about all the “time off” they took when they return.
Since a cold is not a permanent or chronic condition, it is not considered a disability. If, however, an employee with seizures is teased about their condition, it is considered to be a violation of the law.
Harassing Someone About Their Gambling Habits
While it’s against the law to harass a fellow co-worker about their schizophrenia or PTSD struggles, there are a few that aren’t covered.
The State of California has discluded the following even though some may argue that they are indeed mental health issues.
If an employee struggles with compulsive gambling, it’s not unlawful for other employees to tease them about it. Also not included are kleptomania and pyromania.
Substance abuse disorders from drugs or alcohol are also not covered. Neither is their addiction to certain sexual behavior disorders like pedophilia, voyeurism or exhibitionism.
Marital Status
It’s considered workplace harassment when an employee is treated differently for being single, married, separated, divorced, or widowed. You also can’t adopt a ban on hiring married workers at the same place of employment.
However, your company can regulate any married co-workers who are employed in the same department in an effort to minimize any problems that might come up.
It’s also not against the law to offer larger benefits packages to those employees who have more dependents relying on them. This could mean a spouse or children.
Sex Preferences and Gender Identity
California was the first state to legalize gay marriage. It’s considered workplace harassment to discriminate against someone because of their sexual orientation.
However, it’s also against the law to harass someone based on what you perceive their sexual orientation to be. In other words, you can’t tease someone because you think they might be bi-sexual.
It’s also not legal to discriminate against someone based on their gender identity. It doesn’t matter if it’s relating to their gender, gender identity, or gender expression.
Gender identity in relation to the law is broad. It also relates to the person’s gender-related appearance and behavior.
How to Prove Harassment
In order to prove workplace harassment, a few things must be proven first.
They must prove the harassment disturbed their emotional tranquility in the workplace. They must also prove the harassment affected their ability to perform their job duties as usual.
Lastly, you must prove the harassment interfered with and undermined your personal sense of well-being.
If your lawsuit goes to court, the judge will look at a few things. He or she will want to know the severity of the conduct. The judge will also look at how frequently the harassment occurred.
The judge will also want to know the context of the unlawful conduct.
But at the end of the day even if there was no harassment a claim against the business is awful for you. You are going to have to pay all the money to defend yourself and prove you did nothing wrong!
Get the Right Help
If you have an employee accusing your business of workplace harassment, don’t wait. Get the right help now.
A good attorney will ensure that your company stays compliant. We can also help defend your business so it’s not destroyed by a lawsuit.
Contact us today to schedule an appointment and speak with an employer defense expert.
