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Discrimination and Harassment
Discrimination in employment is illegal if it is based on specific criteria. The criteria
defined in the California Fair Employment and Housing Act include 'race, religious
creed, color, national origin, ancestry, physical disability, mental disability, medical
condition, marital status, sex, age, or sexual orientation of any person' as well as
pregnancy, family care and medical leave.
The California Constitution includes creed, color and ethnic origin and the California
Labor Code prohibits discrimination on a variety of other factors including political
activities, whistle blowing, union organizing or discussing terms and conditions of
employment, lawful conduct occurring during nonworking hours away from the
workplace, filing or testifying in a complaint with the Labor Commissioner, initiating
proceedings under the 'Labor Code Private Attorneys General Act' or applying or
intending to apply for workers' compensation benefits, receiving a workers'
compensation rating, award or settlement, or testifying or intending to testify in another
employee's workers compensation case.
Illegal workplace discrimination may also violate California unfair competition laws and
a variety of federal anti-discrimination laws that generally parallel California's laws.
Our anti-discrimination laws apply not only to wrongful termination, but also to hiring,
layoffs, and promotions, pre-employment training programs, compensation and
discrimination in terms, conditions, or privileges of employment.
What Kinds of Workplace Harassment Are Illegal?
The primary focus of litigation has been on sexual harassment in recent years, but harassment based on
other protected characteristics such as race, age, disability, ancestry, pregnancy, religion, sexual
orientation, and so on, is also illegal. But not all forms of behavior, however distasteful, rise to the level
of illegal harassment. The California Fair Employment and Housing Commission has defined
"harassment" to include verbal harassment, such as epithets, derogatory comments or slurs, repeated
overtures, comments, jokes and prying into one's affairs; physical harassment such as unwanted
touching, rubbing against another, assault and physical interference with movement or work; and
visual harassment such as derogatory cartoons, drawings or posters, gestures or leering.
This means that many formal employment actions such as unfair discipline, unwarranted performance
reviews, transfers, job assignments, or vacation denial may be illegal because they are discriminatory,
but they are not necessarily illegal harassment.
With regard to sexual harassment, the federal Equal Employment Opportunity Commission has defined
two types of illegal behavior – "quid pro quo," where sexual conduct is linked to an economic benefit
such as a job or a promotion, and "hostile working environment," where the sexual conduct has the
purpose or effect of interfering with an individual's work performance or creating an intimidating,
hostile or offensive work environment regardless of adverse economic impact.
Employers may avoid liability for illegal harassment where bona fide efforts are made to prevent it,
including providing internal procedures for employees to report it, but in California employers are
strictly liable for hostile environment sexual harassment by a supervisor, and the harasser may also be
personally liable to the victim.
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