Severe and Pervasive Harassment

What constitutes severe or pervasive harassment that alters working conditions and creates an abusive workplace environment? In California a victim of such harassment must satisfy both an objective and a subjective standard. (See, e.g. Harris v. Forklift Sys. (1993) 510 US 17, 126; Beyda v. City of Los Angeles (1998) 65 Cal.App.4th 511, 518; Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 609.)

Objective Standard: Under the objective standard, the victim must prove that a reasonable person in the victim's position would have considered the conduct severe or pervasive. For example, if the victim of the harassment is a woman, a reasonable woman standard is used, whereas, if the victim is a man, a reasonable man standard is employed. Race, sexual orientation, age, and physical and/or mental disability of the victim may also be considered. (See, e.g., Kelly-Zurian v. Wohl Shoe Co. (1994) 22 Cal.App.4th 397.)

Subjective Standard: For the subjective standard, the victim must show that he/she actually felt that the harassment was sufficiently severe or pervasive as to interfere with the work environment.

Totality of the Circumstances: The totality of the circumstances must be considered by the finder of fact (i.e., usually the jury) in determining whether the conduct was severe and pervasive enough to constitute hostile environment harassment. (See, Miller v Department of Corrections (2005) 36 Cal.4th 446, 462; Accardi v Superior Court (1993) 17 Cal.App.4th 341.) Among other things, these considerations may include: (1) frequency of the conduct; (2) severity of the conduct; (3) whether the conduct was physically threatening or humiliating or was merely an offensive utterance; and, (4) whether the conduct unreasonably interfered with the victim's work performance, although the victim is not required to prove that he/she could not perform their job. (Herberg v California Institute of the Arts (2002) 101 Cal.App.4th 142; Etter v Veriflo Corp. (1998) 67 Cal.App.4th 457, 466; Beyda v City of Los Angeles (1998) 65 Cal.App.4th 511, 517.)

Free PDF Converter

In the last blog posting discussing preservation of evidence we discovered File123.com. Another useful use for file123.com which is also a good way to protect documents, contract/agreement versions, and so forth is the free PDF conversion feature. Simply upload a file into File123 such as a contract, a spreadsheet, or a presentation. Once it's uploaded click on the file link and it will open in a PDF viewer within File123. From the viewer click on the save disk icon on the upper left of the viewer and your file can be saved as a PDF.

Preserve Documents

Preservation of documents and evidence is key to any legal dispute. I recommend using http://www.file123.com/ to store important documents. It allows you to store digital files such as computer files and it allows you to store paper documents. This is very important. The free account provides you with 1 gigabyte of space which should be plenty of room to store important documents, photos, emails, and the like.

Hostile Work Environment Sexual Harassment

Under State and Federal law hostile work environment sexual harassment requires showing by the victim that he/she was subjected to unwelcome conduct that was based on sex and was sufficiently severe or pervasive to alter the work environment and create an abusive working environment. The victim must establish that the unwelcome conduct based on sex unreasonably interfered with his/her job performance or created an intimidating, hostile, or offensive working environment.

Emotional Distress Torts to Know

Elements needed for two independent torts for emotional distress:

I. NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

• Defendant engaged in negligent conduct (to be discussed in greater detail in a later post);
• Plaintiff suffered emotional distress (to be discussed in greater detail in a later post); AND
• Defendant's negligent conduct was a cause of the serious emotional distress.

II. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

• Outrageous conduct on the part of the Defendant;
• Defendant intended to cause emotional distress, or, Defendant acted in reckless disregard of the probability of causing emotional distress;
• Plaintiff suffered severe or extreme emotional distress; AND
• Defendant's conduct was the actual and and proximate cause of the emotional distress (see, Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 497-498.)

Actual and Proximate will be explored in later posts.

Quid Pro Quo Harassment

In determining whether quid pro quo harassment occurred, the court may use either an objective or a subjective test.

• The objective test asks whether a reasonable person in the plaintiff's position would have believed that she/he was the subject of quid pro quo sexual harassment. For example, if the plaintiff is a woman, the test relies on a reasonable woman standard (see Ellison v Brady (9th Cir 1991) 924 F2d 872, 878). If applicable, the plaintiff's other traits, such as, race, age, physical or mental disability, and sexual orientation, are also considered.

• The subjective test asks whether the alleged harasser actually intended to subject the plaintiff to quid pro quo harassment, considering plaintiff's fundamental characteristics, and individual traits known to the accused that make the plaintiff particularly vulnerable to quid pro quo sexual harassment. Also considered are characteristics of or information about the accused that are known to the plaintiff. A defendant may be liable under the subjective test if he or she intentionally took advantage of some particular fear or weakness of the plaintiff.

It is essential to a plaintiff's claim of quid pro quo harassment that the sexual conduct be unwelcome. Unwelcome conduct is conduct that the employee did not solicit or incite and that the employee regarded as undesirable or offensive. Conduct may be unwelcome even if plaintiff's sexual compliance was voluntary, as long as the plaintiff's conduct indicated that the sexual advances were unwelcome. See, Catchpole v Brannon (1995) 36 CA4th 237, 260.

Types of Sexual Harassment

Both California and Federal law have generally defined sexual harassment as unwanted sexual conduct of two main types: quid pro quo harassment and hostile environment harassment. Quid pro quo harassment occurs when employment is conditioned, expressly or impliedly, on the submission to unwelcome sexual advances. See Nichols v. Frank (9th Cir 1994) 42 F.3d 503. Hostile environment harassment generally occurs when the plaintiff's work environment is made hostile or abusive by sexual misconduct. See, Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1045; Mogilefsky v. Superior Court (1993) 20 Cal.App.4th 1409, 1414; Montero v. AGCO Corp. (9th Cir 1999) 192 F.3d 856, 860; Fuller v. City of Oakland (9th Cir 1995) 47 F.3d 1522, 1527.

Please feel free to post your questions, comments, and concerns.

Types of Harassment

In California workplace harassment is prohibited. Most people think this only applies to sexual harassment. Sexual harassment is certainly the most common form of harassment we see in our Courts, on TV, and in the media, but it is not the only kind of harassment. Harassment claims based on a Hostile Work Environment Theory may include harassment based on race, religion, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, age, sexual orientation, and of course, sex. Many on the examples in this Blog will involve sexual harassment. However, when discussing Hostile Work Environment, be mindful of these other areas.

The Harasser

Under California Law the harasser is personally liable to the victim of the harassment. If the harasser is a supervisor, or in a supervisory position, the employer is also liable to the victim. For example, if a manager of a fast food restaurant is found liable of sexual harassment for giving unwelcomed massages to the employees, the owner of that fast food restaurant is also liable. This is the case even if the owner has no knowledge of the manager's actions. The owner may be an individual, a partnership, a corporation, or some other kind of legal entity.

Harassment Feels Wrong

There are several legal definitions of what constitutes actionable workplace harassment. Some definitions are statutory (i.e., created by statute) while others are stated in case law (i.e., set forth by judges in appellate and Supreme Court decisions). However, as a preliminary matter harassment just feels wrong. In other words, if someone is treating you harshly in the workplace and making you lose sleep or feel sick, this is a sign, that you may be a victim of harassment.