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There are many distinct types of harassment and not every type of harassment is illegal. Employers may treat employees badly and other employees may harass other employees and the conduct may still be legal. Harassment is unlawful only when the harassment it is based on one of the characteristics that is protected under state of federal anti discrimination laws. STATE LAW California law is much broader and covers more classes. Under California law it is unlawful for an employer, labor organization, employment agency, apprenticeship training program or any training program leading to employment, or any other person, because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation, to harass an employee, an applicant, or a person providing services pursuant to a contract. Under state law the employer has an affirmative duty to take all reasonable steps necessary to prevent discrimination and harassment. An employee is not required to prove loss of tangible job benefits under state law. State law is also broader in that it specifically prohibits harassment and retaliation as well as discrimination. State law also protects independent contractors and even job applicants. Even though the targeted person is generally thought as a person other than a white male. The law applies equally to all and liability can arise from a homosexual advancement as easily as a heterosexual sexual advancement. WHAT IS HARASSMENT Under state law harassment includes verbal harassment, physical harassment, and visual harassment. Verbal harassment can include such things as epithets, derogatory comments or slurs, sexual comments, sexual jokes, or prying into one’s personal affairs. Physical harassment can include unwanted touching, rubbing against another person’s body, assault, physical interference with movement or work, such as blocking someone’s path or seating on another’s desk or sabotaging equipment or tools. Visual harassment pertains to those things that can be seen, such as derogatory cartoons, drawings, posters, cut outs from magazines, lewd gestures or leering. SEXUAL HARASSMENT Sexual harassment is a form of gender based discrimination. It can take two forms, one is economic where an employee’s subjection to sexual conduct or sexual favors is directly linked to grant or denial of job benefits. A second form of sexual based harassment is creating a hostile work environment where the sexual conduct creates unreasonable interference with an individual’s work performance or creates an intimidating hostile or offensive work environment. LIABILITY An employer becomes liable when the employer should know by way of its agents or managers. Harassment of an employee, an applicant, or a person providing services pursuant to a contract by an employee, other than an agent or supervisor, is unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action. An employer may also be responsible for the acts of non-employees, with respect to sexual harassment of employees, applicants, or persons providing services pursuant to a contract in the workplace, where the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action. An employer cannot pretend the problem does not exist or pretend to not have witnessed the conduct. An employer is not strictly liable for the actions of a supervisor if the acts of harassment result from a private relationship unconnected with the employment and do not occur at the work place. LIABILITY AVOIDANCE PRACTICE Among other things a good anti-harassment policy and complaint procedure is a means of reducing the liability exposure to an employer. The standard is whether the system implemented by the employer is a reasonable mechanism for preventing and correcting harassment. The mechanism must do more than just persuade the harassers to stop, the employer must take action to ensure the harassment is not continued by others. The complaint procedure must allow to bypass the supervisor, because often the harasser is the supervisor. An informal policy may be sufficient for a small employer, but for a larger employer a formal would be required. Having a policy would be insufficient if it is not implemented. |