Unlawful Discrimination / Harassment / Retaliation

In California, there are the following “protected categories”: race, religious creed, color, national origin, ancestry, physical or mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, and sexual orientation as well as pregnancy, childbirth, or related medical conditions.  It is unlawful to discriminate or harass based on these protected categories.

Discrimination can occur in many ways, such as refusal to hire, failure to promote/transfer, discharge/termination, or demotion/reduced compensation.

Harassment can be verbal, physical or visual.  The most common type of harassment is sexual harassment.  There are two categories of harassment. (1) Quid pro quo, AKA, tit for tat, where decisions are conditioned on favors (e.g., sexual favors). (2) Hostile Environment, where an offensive work environment is created by conduct such as staring at someone, making comments and jokes, or physically touching or blocking a person in an intimidating manner.  A hostile work environment must be sufficiently extreme to change the terms and conditions of employment.  All verbal or physical harassment in the workplace is not actionable.  It must be severe or pervasive.  To be deemed pervasive, the incidents of misconduct must be sufficiently continuous and concerted.  A single incident may in some instances support a hostile environment claim depending upon its severity.  The required showing of severity of the harassing conduct varies inversely with the pervasiveness or frequency of the conduct; i.e., the more incidents, the less severe they need be, and vice versa.  In California, employers are held strictly liable for the unlawful harassment of the company’s supervisors.  However, for the acts of a non-supervisor, an employer is only liable for the unlawful harassment if the employer knew or should have known of the conduct and failed to take corrective action.

Note, discrimination or harassment against an employee who is perceived to be in a protected category (but is actually not), is also considered illegal.  Likewise, discrimination or harassment against an employee for associating with someone who has, or who is perceived to have, any of the protected characteristics is illegal.

Antidiscrimination statutes also make it unlawful for an employer to retaliate against an employee who reports or otherwise opposes prohibited discrimination or harassment.


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