California has some of the broadest anti-discrimination laws in the country, covering many protected classifications and allowing for expansive remedies including back and front pay, emotional distress and punitive damages, and recovery of attorney’s fees. In addition, some cities as San Francisco, also have ordinances that provide additional protections for discrimination.
In California, an employer of five or more employees cannot discriminate against an employee, job applicant, unpaid intern or volunteer because of the individual’s protected status or retaliate against an individual because s/he has asserted their rights under the law.
The categories of protected status under California law are: gender/sex (including pregnancy, childbirth, breastfeeding or related medical conditions); race/color; ancestry/national origin; religion/creed; age (40 and above); disability, mental and physical; sexual orientation; gender identity/gender expression; medical condition; genetic information; religion; gender identity and gender expression; genetic information; marital status; military/veteran status; victim of domestic violence, sexual assault or stalking; political activities or affiliations.
Under federal law, the protected categories are more limited and include race, color, religion, sex, age and national origin.
Discrimination is the unequal treatment of an employee or job applicant based on the individual’s actual or perceived membership in one or more of the above “protected classifications.”
It is illegal under California law for an employer who has at least one employee or an individual employee to engage in acts of unlawful harassment based on any of the protected classifications set forth above.
There are two types of unlawful harassment under California law: Quid Pro Quo Harassment and Harassment Based on a Hostile Work Environment. In both cases, the conduct must be severe or pervasive and not isolated or trivial and it must be unwelcomed.
Quid Pro Quo Harassment
Quid Pro Quo literally means “this for that” in Latin. In the context of a sexual harassment in employment case it occurs when pay, benefits, title, position, promotion or other employment opportunities for advancement or training (and for continued employment) is conditioned on submission to unwelcomed sexual advances. Whether the unlawful harassment is explicit or implicit, it is illegal under California law and federal law.
Hostile Work Environment Harassment
Hostile Work Environment Harassment is illegal if you are being subjected to a work environment that is hostile or abusive based on your sex or based on any of the above protected classifications. This type of unlawful harassment comes in many forms; including, derogatory comments and slurs; unwelcomed statements about physical appearance; leering or sexual gestures; suggestive comments; inappropriate jokes; physical harassment as unwanted touching or hitting; verbal threats or implied threats; visual harassment as posters or signs; aggressive or repeated requests for sexual favors; and showing favoritism based on a protected characteristic.
In addition, FEHA prohibits employers from retaliating against employees for filing employment discrimination administrative charges, for complaining about discrimination or harassment internally to the employer, for threatening to file a discrimination or harassment charge, for assisting others in filing them, for being a witness in another employee’s DFEH action or if an employer believes this was the case, or for opposing unlawful employment practices even if the employee mistakenly but reasonably believed s/he was opposing discrimination or harassment.
In employment cases, you must file an administrative complaint with the California Department of Fair Employment and Housing (“DFEH”) within three years of the date you were last harmed based on discrimination or unlawful harassment. You must then obtain a “Right to Sue” notice before filing a lawsuit. There are shorter deadlines for filing administratively with the Equal Employment Opportunity Commission (“EEOC”) if you prefer to file a lawsuit under federal law in federal court which in California is 300 days from the last harm you sustain based on discrimination.
Failure to Investigate Harassment
Under California and federal law, employers have a duty to investigate all claims of sexual harassment in the workplace. Employers will be liable if they fail to investigate or conduct a negligent investigation. Once on notice of harassment in the workplace, an employer must take immediate and effective steps to end the harassment.
We can help you through this process from beginning to end, whether you are an employee or employer. Please contact one of our attorneys for a consultation.