When people think about harassment, it can seem hard to guess what is actually prohibited. Take sexual harassment, for example. Many people fear that asking a co-worker out on a date could constitute sexual harassment. But as long as you accept it if the answer is no, this does not rise to the level of harassment.
This is because harassment generally needs to be repeated or severe before the employer could be held responsible for it. Under California’s Fair Employment and Housing Act (FEHA), sexual harassment is defined as unwanted sexual advances or visual, verbal or physical conduct of a sexual nature. Merely asking for a date is not enough, even if your co-worker wasn’t receptive.
Under federal anti-discrimination laws, harassment is merely defined as “unwelcome conduct” based on race, color, gender, pregnancy, religion, national origin, age, disability or genetic information. However, this conduct is only illegal when 1) enduring the conduct is made a condition of continued employment or 2) the conduct is severe or pervasive enough to create a hostile work environment.
So, when we talk about harassment, we’re really talking about conduct that is not only unwelcome but repeated and severe. The California Department of Fair Employment and Housing gives these examples of conduct that may be considered sexual harassment:
Visual conduct: leering or making sexual gestures, or displaying sexually suggestive objects, pictures, posters or cartoons
Verbal conduct: verbal abuse, making derogatory comments, epithets, slurs or jokes; using graphic or sexually degrading words to describe an individual
Physical conduct: unwanted touching, assault, impeding or blocking movements
Offering employment benefits in exchange for sexual favors
Real or threatened retaliatory action after a negative response to sexual advances
This can include conduct by a person of the same sex as the victim. It can include derogatory comments or other conduct aimed at people due to their sexual orientation, gender identity or gender expression.
It’s important to understand that harassment does not have to be sexual in nature to be illegal. Under the FEHA, harassment can include conduct similar to the examples but which relates to:
- National origin
- Religion or creed
- Age (40 and over)
- Mental or physical disability
- Medical condition
- Genetic information
- Marital status
- Military or veteran status
The FEHA prohibits harassment in all workplaces, regardless of size, and against all types of workers, including employees, job applicants, unpaid interns, volunteers and independent contractors.
Federal employment laws define harassment similarly, although the protected characteristics are slightly more limited.
If you’re worried that a simple compliment or other minor behavior could constitute illegal harassment, you can let those worries go.
Leigh Law Group represents workers in California who have suffered illegal harassment.