Put simply, the difference between workplace harassment and employment discrimination under California's Fair Employment and Housing Act (the "FEHA") is this:
- Workplace harassment occurs when someone in the workplace mistreats another person based on their gender, race, national origin, sexual orientation or other prohibited category, in a way that falls outside the job description of the person committing the harassment.
- Employment discrimination occurs when someone in the workplace treats different employees differently on the basis of prohibited categories while performing acts that ARE part of the job description of the person committing discrimination.1
What is workplace harassment in California employment law?
The legal definition of harassment under California labor and employment law encompasses two types of behavior:
- The "quid pro quo" form of sexual harassment, in which a supervisor makes certain employment benefits contingent on the performance of sexual favors or behavior; and
- The "hostile work environment" form of harassment, in which one party in the workplace engages in severe or pervasive offensive behavior that alters the work environment for another employee. (Hostile work environment harassment can be either sexual or non-sexual harassment, and this form of harassment can be committed by non-supervisors as well as by supervisors.)2
What both forms of workplace harassment have in common is that they involve behavior that is irrelevant to the actual job duties of the person doing the harassing. Harassment is a form of workplace bullying. It happens as part of interpersonal interactions in the workplace--not as part of official actions by or on behalf of employers.3
The following examples will help illustrate the harassment-discrimination distinction:
Example: Ted is the manager of a big-box store and is responsible for assigning workers to their shifts.
Rachel is an employee at the store and a single mother. She is frequently assigned to work afternoon and night shifts, which interferes with her ability to spend time with her children after school.
Rachel asks Ted if he can try to assign her to more morning shifts. Ted tells her that he would be happy to help her--if she will go out on a date with him.
Ted is committing quid pro quo sexual harassment against Rachel. Asking employees out on dates (and conditioning work benefits on them saying yes) is not part of his job description as manager. That is why this is a case of workplace harassment, not employment discrimination.
Example: Raul is a Mexican-American marketing professional who works at a small internet marketing firm. Kelly is his co-worker.
Kelly regularly makes disparaging comments to other co-workers about immigrants from Latin America and says that she hopes the government will "send them all home." She makes a comment like this that Raul can hear at least every other day. The owner of the marketing firm hears these comments too and does not do anything to stop them.
Raul may be experiencing hostile work environment national origin harassment at his workplace. This too is harassment, not discrimination, because Kelly's ethnically insensitive comments are not connected in any way to her job duties.
How is employment discrimination different from workplace harassment in California?
The difference between discrimination and harassment under the FEHA is this: while harassment is bias (on the basis of sex, race, religion, etc.) that is expressed through interpersonal relations in the workplace, discrimination is such bias expressed through official employment actions.4
Put another way, an employer or supervisor who commits discrimination does so while s/he is performing his/her job duties. Workplace harassment consists of behavior that is external to the harasser's actual job--but employment discrimination is always part of the performance of that job.
Example: Let's return to Ted, from our example above--a manager who is responsible for assigning workers to shifts at a big-box store.
Ted has been unlucky in his romantic life and seems to hold a grudge against all the women who work at the store. He systematically gives women the worst shifts and makes them work on holidays and late at night. Male employees are typically given the best, easiest shifts.
Ted is committing workplace discrimination on the basis of gender. Assigning shifts to workers is one of his official duties--but he is performing that duty in a way that expresses his animus against a category of individuals protected from discrimination by the FEHA (women).
Example: A corporate law firm is forced to lay off half of its paralegals in the middle of an economic downturn. The decision as to whom to lay off is made by a small executive committee of three partners, all of whom are white.
All of the paralegals who are laid off are non-white. After the layoffs, only one paralegal who is not white is left at the firm.
Making decisions about whom to lay off is a normal part of the job description of the lawyers managing the firm. But they may have performed that duty in a racially-biased way--and so the firm may have committed employment discrimination.
What are my rights under the FEHA if I experience harassment or discrimination at work?
Regardless of whether you are experiencing sexual harassment, non-sexual harassment or discrimination at work, California employment law and the FEHA provide you with the right to do something about it.
Our California employment lawyers recommend the following steps for employees experiencing harassment or discrimination:
First, you should report the harassment or discrimination to someone at your employer--a supervisor, a supervisor's supervisor, a human resources or an equal employment opportunity manager.
If your supervisor is the one committing harassment or discrimination, your employer must provide you with an alternative channel for complaints. (This should be spelled out in your employer's harassment and discrimination policy, which is a recommended anti-harassment measure that all California employers should take.5)
Reporting the harassment or discrimination to your employer may result in the situation being resolved, if the employer responds appropriately to your harassment or discrimination complaint.
But if the problem is not resolved internally, then your next step is to File a complaint with the California Department of Fair Employment and Housing ("DFEH").
This step applies regardless of whether you are dealing with harassment or discrimination (or both). The complaint must be filed within one (1) year of the harassment or discrimination.6
Finally, you may file a civil lawsuit against your employer or the individual(s) who harassed or discriminated against you, once DFEH issues you a "right to sue" notice.7
Call us for help....
For questions about the distinction between workplace harassment and employment discrimination under California's Fair Employment and Housing Act, or to discuss your case confidentially with one of our skilled California labor and employment attorneys, do not hesitate to contact us at Shouse Law Group.
We have local employment law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
- Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 869-70. ("Harassment is distinguishable from discrimination under the FEHA. “[D]iscrimination refers to bias in the exercise of official actions on behalf of the employer, and harassment refers to bias that is expressed or communicated through interpersonal relations in the workplace.” (Roby v. McKesson, Corp., supra, 47 Cal.4th p. 686, 707, 101 Cal.Rptr.3d 773, 219 P.3d 749.) As our high court explained in Reno v. Baird, “Harassment claims are based on a type of conduct that is avoidable and unnecessary to job performance. No supervisory employee needs to use slurs or derogatory drawings, to physically interfere with freedom of movement, to engage in unwanted sexual advances, etc., in order to carry out the legitimate objectives of personnel management. Every supervisory employee can insulate himself or herself from claims of harassment by refraining from such conduct. An individual supervisory employee cannot, however, refrain from engaging in the type of conduct which could later give rise to a discrimination claim. Making personnel decisions is an inherent and unavoidable part of the supervisory function. Without making personnel decisions, a supervisory employee simply cannot perform his or her job duties.”")
- See Mogilefsky v. Superior Court (1993) 20 Cal.App.4th 1409, 1414–15.
- Serri v. Santa Clara University, endnote 1 above.
- California Code of Regulations 11023 CCR -- Harassment and Discrimination Prevention and Correction. ("(b) In addition to distributing the Department's DFEH-185 brochure on sexual harassment, or an alternative writing that complies with Government Code section 12950, an employer shall develop a harassment, discrimination, and retaliation prevention policy that: . . .(5) Provides a complaint mechanism that does not require an employee to complain directly to his or her immediate supervisor, including, but not limited to, the following: (A) Direct communication, either orally or in writing, with a designated company representative, such as a human resources manager, EEO officer, or other supervisor; and/or (B) A complaint hotline; and/or (C) Access to an ombudsperson; and/or (D) Identification of the Department and the U.S. Equal Employment Opportunity Commission (EEOC) as additional avenues for employees to lodge complaints.")
- Government Code 12960 GC -- Procedure for prevention and elimination of unlawful employment practices; application of article; complaints; limitations [workplace harassment and discrimination complaints to DFEH].
- Government Code 12965 GC -- Civil action in name of department; group or class complaint; relief; tolling of statute of limitations [workplace harassment or discrimination lawsuits].