Workplace harassment is any unwelcome behavior or policy that creates a hostile work environment for an employee due to the employee’s gender, race, color, religious views, national origin, age, gender identity or physical/mental disability. As employment lawyers in San Francisco, we know that harassment in the workplace may or may not be sexual in nature and often involves a degree of discrimination. When the harassment is of a sexual nature, it can be classified as quid pro quo (meaning ‘this for that’) – or hostile work environment sexual harassment, and both are considered a form of discrimination in employment, according to the California Fair Employment and Housing Act.
The courts will usually take into consideration three factors to determine if the behavior in question was in fact illegal, including the frequency of the behavior, severity of the behavior and surrounding circumstances and context in which the offensive behavior took place. In order for a certain behavior to be classified as workplace harassment and/or discrimination, the party affected by such behavior must show enough proof that it has affected his or her ability to perform their jobs and negatively impacted them personally and emotionally.
What Steps Should I Take If I Believe I Am Being Harassed by an Employer or Co-Worker?
If you are being harassed by your employer, by a manager or by a co-worker, your first step should be to file a complaint following your employer’s procedure for reporting workplace harassment. Most companies have outlined procedures for filing a harassment complaint and those can usually be found in your employee handbook. Make sure to retain a copy of your initial complaint and of any other communications that may follow it.
You should include as much detail as possible when making your complaint and name any witnesses or anyone who you may have talked to about what happened. While you may be tempted to destroy or get rid of disturbing notes, texts, emails or messages, it is important to resist the urge to do so, as those can be used as evidence to strengthen your case.
If you have filed a harassment complaint with your employer and believe it was ignored or not adequately handled – or if you feel you are being retaliated against afterwards -, your next step is to file a complaint with the California Department of Fair Employment and Housing (DFEH) or with the Equal Employment Opportunity Commission (EEOC).
You may also want to consult an attorney that handles Employment Law claims and can help you better understand the law and assist you with planning your next steps. Some cases may end up being resolved through mediation or arbitration, which are faster and less costly methods that allow you to defend your rights without going to trial. However, when that is not possible or a fair outcome has not been reached, an Employment Law attorney can take your case to court.
It is important to mention that you should not wait too long to file your complaint with the DFEH or the EEOC. This is because the DFEH requires workplace harassment victims to file their complaint within one year of the harassment or retaliation incident occurring, and the EEOC only gives victims 300 days to initiate their complaint. With that in mind, filing as soon as possible also makes it easier to have a clear picture of what happened, as memories fade and witnesses may be harder to reach as time goes by.
Can I Sue My Employer for Workplace Harassment?
You may be able to sue your employer if you followed the correct procedure for submitting a formal harassment complaint and the employer failed to take action to stop the harassment. In most cases, once the complaint is made, it is the employer’s responsibility to take the proper measures to restore your ability to work in a safe environment without harassment, discrimination or bullying.
If that does not happen, the employer has breached their duty of care to you (the employee) and can be sued for negligence. If after you filed your complaint your employer behaved even more egregiously, acted in an unfair, punishing or discriminatory manner, you may also be able to sue your employer for illegally retaliating against you – which may only make matters worse for them.
If you are still being repeatedly subjected to harassment after filing a complaint and nothing has been done about it, you may be able to quit your job if your work conditions are considered severe and/or dangerous enough that any other person would not tolerate if placed in your position. We call this constructive termination, and under these circumstances, you may seek compensation for lost wages.
This is not the case if an employee has been the victim of a single harassment incident and decided to quit before taking the proper steps to resolve the issue – in order to sue for damages, you must demonstrate you have made the effort to seek a resolution and followed the company’s procedures with no results.
How Can an Employment Law Attorney Help Me?
Employment laws in California can be quite complex, and there are a few different sets of laws that may apply to a workplace harassment claim. A knowledgeable workplace harassment attorney can help you navigate the countless procedures you may have to go through before you are able to sue your employer in court. An attorney can also be instrumental in helping you avoid costly mistakes that may hinder your chances of a positive outcome.
Everyone deserves a safe and positive work environment, free of harassment and retaliation. At Geonetta & Frucht, LLP, our attorneys have handled a wide variety of workplace harassment cases in the San Francisco area and are ready to assist you when you need to stand up for your rights and fight back against your employer.
