Finding the Facts - Disciplinary and Harassment Investigation

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L EGAL S TANDARD FOR H ARASSMENT

H OSTILE W ORK E NVIRONMENT

Protected Status State and federal law only prohibit harassment based on the complainant’s protected status. So, before considering whether the conduct created a hostile work environment, one must evaluate whether the individual’s “protected status” was involved. That is, was the conduct based upon the individual’s protected class, i.e., sexual orientation, gender, age, race, national origin, religion, disability, medical condition, marital status, and/or was the conduct sexual in nature?

The Governor signed into law AB 887 and SB 559, which prohibit harassment and/or discrimination based on gender identity and

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expression, and genetic information. AB 887 amends FEHA to specifically include “gender identity” and “gender expression” as part of the term “sex.” Gender identity refers to a person’s deeply felt internal sense of being male or female. And gender expression refers to one’s behavior, mannerisms, appearance and other characteristics that are perceived to be masculine or feminine. AB 887 clarifies that FEHA prohibits, for example, the harassment of a male employee who wears makeup, wears skirts, or behaves effeminately. Similarly, the EEOC determined that Title VII prohibits discrimination against transgender employees. 177 Under SB 559 employers are now prohibited from discriminating against a job applicant or employee based on the individual’s genetic tests, genetic tests of the individual’s family members, or the manifestation of a disease or disorder in the individual’s family members. Effective January 1, 2014, SB 292 amended FEHA and expanded the definition of “sexual harassment” to clarify that sexually harassing behavior need not be motivated by sexual desire. Accordingly, where offensive comments are made between members of the same sex and are motivated by “horseplay” instead of sexual desire, a harassment claim under the FEHA can still be established. 178

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