What is illegal "harassment" in employment?

The most commonly misunderstood and misused employment-law term is “harassment.”

The legal and non-legal definitions of “harassment” differ in significant ways. Used in the ordinary or common sense of the term, harassment means to annoy, bother, or intimidate. In an employment context, one may describe many negative workplace encounters as harassment.  This could include yelling, cursing, undue criticism, and outbursts of anger or frustration by supervisors directed at employees.

However, the legal definition of harassment under the Fair Employment and Housing Act (the FEHA) adds an additional requirement. Under the FEHA, the plaintiff-employee must also be subjected to unwanted harassment because of a legally protected characteristic. Legally protected characteristics include age (if over 40), ancestry, color, disability or “health” status, gender (including pregnancy and “sexual harassment”), gender identity, military and veteran status, marital status, national origin, race, religion, and sexual orientation.

As an illustration, Donny works as a waiter at the busy Central Coast restaurant, Shade Creek. Shade Creek is a fast-paced and high-stress work environment. Donny’s manager, Jordan, takes his job at Shade Creek very seriously. Unfortunately, Jordan regularly loses his temper at work and yells at all employees who are perceived to be performing at less than 100% capacity. Jordan regularly yells at Donny multiple times per shift, more than any other employee. One night, Donny spills ice tea on a patron’s lap. Jordan swears-out Donny, calls him stupid, and terminates him. Donny then calls an attorney and says he worked in a “hostile work environment” and that he was regularly “harassed” by Donny.

Unfortunately, Donny does not have a case for harassment. Donny experienced pervasive harassing conduct at work, but not illegal harassment. Donny was harassed because of the fast-paced, high-stress nature of his work. His manager, Jordan, yells at all employees, not just Donny. Most importantly, there are no facts to show that Donny experienced harassment because of a protected characteristic. Donny simply had a very bad working environment at Shade Creek.

To illustrate an example of unlawful harassment, let’s change the facts slightly. Unfortunately, Donny the waiter was born with two left feet; a birth defect. As a result, Donny has difficulty with walking and coordination. This causes Donny to be much clumsier and slower than the other waiters at Shade Creek Restaurant. Donny’s coworkers are aware of Donny’s disability. Unfortunately, Jordan regularly yells at Donny, far more than the other employees. Jordan openly refers to Donny as “the Gimp”, “Clubfoot”, and “Leftie” in front of customers and coworkers. One day, Donny trips at work and spills ice tea on a patron. Jordan erupts at Donny, and tells him “Today’s your last day. Get out of here, Gimp!” Donny then calls a lawyer.

Under these facts, Donny has a great case for harassment under the FEHA. Donny has lots of evidence that Jordan’s unwanted name calling was directed at him because of his disability and  medical condition (his two left feet); protected characteristics under the FEHA. The same facts would also support a case of disability discrimination under the FEHA.

Are you or a friend experiencing harassment at work? Call Brian Mathias Law, serving both sides of the Monterey Bay. Ready to stand up for your rights?