4 Misconceptions Employees Have About Harassment

posted by Daniel Stevens  |  Oct 16, 2018 12:58 PM [EST]  |  applies to California


4 Misconceptions Employees Have About Harassment 

Harassment remains an issue in the workplace yet many employees remain unaware of the ways it is regulated under employment laws.  Employees may not know that there are different types of harassment and that not all of them are recognized by the law.  Employees may not know that there are different laws that a suit can be filed under and depending on which laws the suit is filed under may impact the outcome of the case. In addition, some employees may not be aware of the many types of harassment that are in existence. Below there are four types of common misconceptions employees have regarding harassment in the workplace.



1.  Not all harassment gives an employee the right to sue

 not all harassment is prohibited by the law

First things first, not all harassment is prohibited by the law.  If all harassment was against the law, all the civil courts would be flooded with frivolous suits about Bobby stealing Kim’s lunch from the employee break room or Beth not letting Lisa use her stapler because she doesn’t like her personality.  Many employees are mistaken in thinking that they are protected by the law when it comes to harassment and this is not entirely accurate.  Employment laws in general only deem harassment as unlawful if the harassment is based on a characteristic or a class that the law recognizes as protected. For example, sexual harassment falls under the protection of the law because sexual harassment is considered sex discrimination. Some examples of classes and characteristics protected by the law include race, religion, sexual orientation, gender, and pregnancy.


Not all harassment is prohibited by the law but an Employment Attorney may be able to tell you if you are being harassed because you belong to a protected class.  It also depends on the circumstances and the facts of your case.



2.  There are differences between state and federal law when it comes to harassment cases

 differences between state and federal law when it comes to harassment cases

In general, employees may believe that there are laws that prohibit harassment in the workplace and if they decide to sue for harassment they simply sue pursuant to those laws.  But it is much more complex than that because the rules of civil procedure and choice of law can greatly influence the outcome of the case.


There are state laws and federal laws that both regulate harassment in the workplace but they are different in some ways that may impact the outcome of the case.  For instance, both state and federal law find an employer to be liable for harassment in the workplace, but under federal law, there is a defense available for employers to nullify liability.  In California, there is a similar defense for employers but it does not relieve the employer of liability but it can reduce the amount in damages awarded to the employee.


Another difference between state and federal law when it comes to harassment is that under California law, the person who did the harassing can still be found personally liable regardless of whether the employer is liable. Being held personally liable means the employee bringing the claim may be awarded damages that would come out of the harasser’s own personal funds or assets.  Under federal law, the same does not apply.


If a harassment case is litigated in a federal court the defense may, in certain circumstances,  use the alleged victim’s sexual history with other partners outside of work as evidence.  The federal court may allow the defendant to present this evidence if the importance of the evidence exceeds the possibility of prejudice. In California, the courts do not permit this balancing in order to permit this kind of evidence.


Lastly, under federal law, an employee who is successful in their harassment claim will have a cap placed on how much money he or she may be awarded.  Under state law in California, a plaintiff does not have a cap on how much they may be awarded. 


Meeting with an Employment Attorney can clear up any misconceptions an employee may have about a harassment case regarding which law he or she should file suit under.  But again, it is helpful to at least know there are differences in the law and those differences may greatly impact the outcome of a case. 



3.  Harassment is not always verbal

 Harassment is not always verbal

Another common misconception employees may have about harassment is that it is only conveyed verbally, however, harassment can come in other forms.  Of course, the most common way harassment is delivered is through verbal harassment such as name calling, teasing, yelling, taunting, or scolding. But there are other forms of harassment that many employees did not know about. In addition to verbal harassment, an individual may be liable for harassment if he or she chooses to harass the employee through text messages, phone calls, emails and spreading rumors. An employee may also experience harassment through visuals such as pictures, memes, cartoons, or even videos.



4.  The harassment needs to be connected to a recognized class or characteristic

 Misconceptions Employees Have About Harassment

As mentioned previously, the law recognizes particular classes and characteristics of people and deems harassment towards these types of employees as unlawful behavior.  But belonging to one of the recognized classes or possessing one of the recognized characteristics does not automatically mean the employee has a right to sue if they are harassed. The way it works is that the employee belongs to a protected class or possess a protected characteristic and is then harassed based on belonging to that class or having that characteristic.  So if for example an employee was Jewish and their boss was rude to them and called them names all the time because he did not like that employee, that may not be a protected situation.  Now, if the boss picked on the employee and called the employee names because he or she was Jewish, then that might be considered as unlawful harassment.


Although an Employment Attorney can provide helpful information regarding harassment in the workplace, employees should still attempt to understand some of the basics of harassment in case he or she may become a target of it at work. Knowing the basics of harassment may help an employee to know what their rights are in a potential harassment claim.  Call an Employment Attorney who offers free consultations.  


Source: 4 Misconceptions Employees Have About Harassment​

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