My coworkers are harassing me. What are my rights?
Many people often ask me, “Is it harassment if my coworker makes racist remarks?” The answer: maybe. On the one hand, not every mean or rude comment qualifies as harassment. On the other hand, many employees suffer long periods of unlawful harassment or sexual harassment from their fellow employees but are unaware of what they can do about it.
As I said last week, a claim requires an adverse employment action against the employee, such as demotion or discharge. On the other hand, when an employee experiences severe or pervasive harassment or discrimination because of her race, gender, or other protected characteristic, no other adverse employment action is necessary. Each of these elements is important; although many employees claim they experienced a hostile work environment, the legal definition of the term differs from the everyday definition. Again, to establish a hostile work environment claim for harassment under both California and federal law, an employee must show that the “conduct complained of was severe enough or sufficiently pervasive to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees” because of their sex, race, or other protected category. Lyle v. Warner Bros. Television Prods., 38 Cal. 4th 264, 278-79 (2006)(citing Harris v. Forklift Systems, Inc.,510 U.S. 17, 21 (1993)).
How can an employee bring a claim for harassment based on the unlawful treatment by a fellow employee? Generally, an employee may bring a harassment claim against his or her employer under one of two theories: vicarious liability or negligence. Swinton v. Potomac Corp., 270 F.3d 794, 803 (9th Cir. 2001). If the employee’s supervisor engaged in harassment, then the employer may be held vicariously liable, meaning the employer is on the hook for the supervisor’s actions. Id. (citing Nichols v. Azteca Restaurant Enters., 256 F.3d 864, 875 (9th Cir.2001); Ellison v. Brady, 924 F.2d 872, 876 (9th Cir.1991)). To bring a claim against an employer based on the harassment of a co-worker, however, the U.S. Supreme Court has determined that an employee would have to show that the employer knew or should have known of the harassment, and failed to stop it. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 759 (1998).
Examples of Coworker Harassment
Three case examples illustrate the nature of coworker harassment and the ensuing liability for employers. In Swinton v. Potomac Corp., the plaintiff endured consistent racial harassment by his coworkers, including racist jokes such as, “Did you ever see a black man on The Jetsons? Isn’t it beautiful what the future looks like?” and “Why don’t black people like aspirin? Because they’re white, and they work.” 270 F.3d 794, 804 (9th Cir. 2001). Because the plaintiff’s supervisor witnessed this racial harassment but did nothing to end it, the court held the employer liable. Id.
Similarly, in Nichols v. Azteca Rest. Enterprises, Inc., the plaintiff was subjected to “a relentless campaign of insults, name-calling, and vulgarities,” by male coworkers because they believed he did not fit a male stereotype. Nichols v. Azteca Rest. Enterprises, Inc., 256 F.3d 864 (9th Cir. 2001). Male co-workers and a supervisor repeatedly referred to him in Spanish and English as “she” and “her,” mocked him for walking “like a woman,” and called him a “faggot.” Id. at 870. When the plaintiff complained to his assistant and general managers, the company did nothing and made no efforts to deter future harassment. Id. at 876. Because the company failed to meet its remedial obligations, the Ninth Circuit held the company liable for the harassment by the plaintiff’s coworkers. Id.
In Rehmani v. Superior Court, the plaintiff a Pakistani and a Muslim, faced comments such as “Pakistan and Afghanistan need[ed] to be bombed and wiped out because of all the terrorist activity there,” and “What is going on in Pakistan? It is a messed up country and it is creating a mess in the region and in India. There is lots of terrorism. Why don’t you people do something about it,” and he was asked by a co-worker, “You’re not going to blow me up, right?” 204 Cal. App. 4th 945, 953 (2012). Rehmani reported these incidents to his supervisor, who advised him to consider it as a joke and “not worry about it.” Id. In that case, the California Court of Appeal overturned the lower court’s order granting summary adjudication to his employer because the trial court erroneously dismissed his claims of workplace harassment based on national origin and religion. The court agreed that triable issues existed as to the employer’s liability for a hostile work environment claim because it could not hold “as a matter of law that the evidence [the plaintiff] wishes to adduce is insufficient in the aggregate to establish a claim for harassment” based on national origin and religion. Rehmani v. Superior Court, 204 Cal. App. 4th 945, 948, 959 (2012).
All of these examples demonstrate harassment “severe enough or sufficiently pervasive to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees” and where the employer knew or should have known about the harassment and did nothing to stop it. See Lyle, 38 Cal. 4th at 278-79; Burlington Indus., Inc., 524 U.S. at 759.
Notifying Your Employer & Your Employer’s Obligations
Employees should notify their employer if they feel that they have been discriminated against or harassed. Employees can review their employee handbooks to determine who they should contact within the company. Often, employees can report the conduct directly to their supervisor, but other times, and in particular where the harasser is the supervisor, employees should report the conduct to Human Resources or an equivalent department. An employee may also report the harassment directly to a government agency like the California Department of Fair Employment and Housing.
Once an employer knows or should know of co-worker harassment, “a remedial obligation kicks in.” Nichols, 256 F.3d 864, 875 (citing Fuller v. City of Oakland, 47 F.3d 1522, 1527 (9th Cir.1995)). The employer must take reasonable steps to: (1) “stop harassment by the person who engaged in harassment;” and (2) “persuade potential harassers to refrain from unlawful conduct.” Id. (citing Ellison v. Brady, 924 F.2d 872, 882 (9th Cir. 1991)). When the employer does nothing or when the employer’s remedy does not end the current harassment and deter future harassment, the employer becomes liable for both the past harassment and any future harassment. Id. (citing Fuller, 47 F.3d at 1528–29). If that occurs, employees should consider contacting a sexual harassment attorney and filing a claim with the Department of Fair Employment and Housing or the Equal Opportunities Commission.