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Workplace Harassment – What Is and Is Not Harassment?

Posted on December 13, 2012

Although the terms “harassment” or “hostile work environment” are often used to describe a difficult work environment, not every malicious or callous act taken by an employer against an employee qualifies as a legal wrong. Rather, the harassing acts must be “because of” the employee’s status in a protected group such as race, color, sex, religion, national origin, ancestry, age, disability, marital status, sexual orientation, veteran status, or medical condition.

Harassment, when based on the criteria noted above, can come in a number of forms including criticism, reprimands, and disparate treatment. If the employer permits an atmosphere within the work place that is hostile to members of the protected classes, the employer is still liable even if the complaining employee is not the direct subject of the harassing acts. Pervasive atmospheres, however, are not created by single, isolated incidents but by repeated regularity so that the harassing atmosphere constitutes a regular part of the working environment.

To qualify as a violation of California law, the harassment must occur within the working environment. Private harassment that takes place away from and is unrelated to the work-place is not prohibited conduct under California law. Further, the discriminatory acts taken against the employee must be attributable to the employer itself; workplace harassment by an employee who is of the same level as the harassed employee by itself does not constitute workplace harassment because the harassing employee’s is not considered to be the “employer.”

However, where one employee harasses another and the employer knows or has reason to know of the harassment and fails to take reasonable and prompt action to quell the conduct, then the employer may be liable for harassment. Additionally, if the harassing acts are committed by an employee with supervisory or managerial duties, then California attributes those harassing acts to the employer and holds the employer directly liable for the harassing conduct. Either way, the harassed employee may sue both the individual harasser and the employer for the harassing acts.

If you feel that a co-worker or supervisors conduct has crossed the line and might be harassment, seek legal counsel as soon as possible to learn more about your rights.

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