Racial Harassment

Although California state law for most types of harassment is the same in that it all derives from the Fair Employment Housing Act or the common (case) law, the approach taken in each type of harassment case may be, and often is, dramatically different.

Run of the mill harassment which is based upon inter-personal conflict is not unlawful. Therefore even if there is screaming, name-calling, or unfair treatment such as unequal division of the workload, it is not illegal unless it can be shown to be based upon a prohibited reason, such as race or ethnicity.

In order to prevail in a race case, the plaintiff must show that the person or person's engaging in the harassment did so without "racial animus" or bias.

The best proof of racial bias is direct evidence, but secondary, or circumstantial evidence are also sufficient to prove such bias, especially where there is an abundance of it.

For example, racial bias can be shown by race based comments such as toleration of, or workplace use of the "N" word," racial jokes, stereotypes, Racial bias may also be proven by showing the employer engages in "disparate treatment" of workers of different races, such as where different races are treated more favorably than others.

Racial harassment must be shown to be sufficiently "severe or pervasive" to be actionable. Therefore, where there is a single harassing act, it must be shown to be sufficiently severe or a case may be subject to dismissal.  Similarly, even if not sufficiently severe, where there are numerous acts of relatively less serious harassment, the conduct may be viewed as "pervasive," thus allowing a case to proceed.

If the unlawful conduct is by a supervisor, the employer will be held "strictly liable" for the harassing acts (a form of liability not requiring a showing of fault on the employer's part). If however, the unlawful acts are those of a co-worker, a plaintiff must show that the employer was aware of the misconduct and failed to take all reasonable steps to prevent and or correct the misconduct. Due to a recent Supreme Court case however, even though an employer is strictly liable for harassment by a supervisor, if the employer can show that it had effective policies against harassment which were actually enforced the employer may be able to avoid the full extent of liability if it can show that the employee unreasonably failed to avail himself or herself of the protection of those policies.

Please call the numbers listed or click the link below if you believe you may be a victim of sexual harassment. You will be contacted for information shortly thereafter.