Harassment in the workplace, whether it be sexual or just plain bullying, is all too common in the workplace, at workplace functions, and after hours if co-workers are mixing and mingling after work. Consequently, both employers and employees would be well advised to learn how to handle such situations. Both employees and employers should be aware that the employer can be held liable for harassment that occurs at work functions like Christmas parties, conferences, lunches, and even after hours if your employees go out for drinks. Practical steps employers should take to prevent and successfully defend such actions are discussed in my article Preventing Sexual Harassment Claims. This post seeks to provide the employee with instruction first by defining what constitutes harassment and sexual harassment, and then by providing the employee with practical steps to deal with and document workplace harassment in the event the employer fails to take appropriate measures.

What is Harassment?

Unlike sexual harassment, there is no legal definition of workplace bullying, or hostile work environment. In general, however, you are probably the victim of harassment if a co-worker, supervisor, or boss engages in repeated conduct that is unreasonable in the circumstances and either causes a risk to the health and safety of the employee, or humiliates, undermines or threatens the employee. Workplace harassment can be defined as any unwelcome verbal, written or physical conduct that denigrates, or shows hostility or aversion towards a person on the basis of race, sex, gender, sexual orientation, color, national origin, religion, age, political affiliation, or disability, that: (1) has the purpose or effect of creating an intimidating, hostile or offensive work environment; (2) has the purpose or effect of unreasonably interfering with an employee's work performance; or (3) affects an employee's employment opportunities or compensation.

What is Sexual Harassment?

Sexual harassment is unwelcome conduct of a sexual nature that a reasonable person, having regard to all of the circumstances would have anticipated would cause offence, humiliation or intimidation. The Fair Employment and Housing Commission (FEHC) defines sexual harassment as "unwanted sexual advances, or visual, verbal or physical conduct of a sexual nature. This definition includes many forms of offensive behavior and includes gender-based harassment of a person of the same sex as the harasser (2)." This definition includes many forms of offensive conduct, including but not limited to:

• Unwanted Sexual Advances.
• Inappropriate Physical Conduct: Touching, pinching, kissing, attempts to impede or block movement, and of course physical assault.
• Sexual Propositions: Offering employment benefits in exchange for sexual favors, or other demands for sexual favors.
• Making or threatening reprisals after a negative response to sexual advances.
• Visual Conduct: leering, ogling, making sexual gestures, or displaying of sexually suggestive objects or pictures, cartoons or posters.
• Verbal Conduct: making or using sexual innuendoes, whistling, suggestive comments, insults of a sexual nature, sexist remarks about one’s body, clothing, or sexual activity, and other suggestive, offensive, or derogatory epithets, slurs, and jokes.

In Edna Miller, et al., v. Department of Corrections, et al. (7/18/05), The California Supreme Court expanded the definition of sexual harassment by holding that ". . . although an isolated instance of favoritism on the part of a supervisor toward a female employee with whom the supervisor is conducting a consensual sexual affair ordinarily would not constitute sexual harassment, when such sexual favoritism in a workplace is sufficiently widespread it may create an actionable hostile work environment in which the demeaning message is conveyed to female employees that they are viewed by management as ‘sexual playthings’ or that the way required for women to get ahead in the workplace is by engaging in sexual conduct with their supervisors or the management."

What is Retaliation?

When an individual has been harassed often times, the harassment is followed by some form of retaliatory act, such as acts of reprisal, interference, restraint, penalty, discrimination, intimidation, or additional harassment in the form of a hostile work environment. Knowing you were the victim of sexual harassment or of a hostile work environment and knowing that you were retaliated against for complaining is one thing, proving it is another.

To prove retaliation, the aggrieved employee must be able to demonstrate that: (1) they engaged in a protected activity (complained about the harassment), that the employer took an adverse action against them (negative performance review, demotion, suspension, or termination, etc..) and that there was a causal connection between the protected activity and the adverse action (Burger v. Central Apartment Management Inc., 1999). Implicit in these requirements is that the aggrieved employee must be able to prove: (1) that the employer knew the employee was subjected to offending conduct, (2) the employer did not take the matter seriously; and (3) that the employer relatively soon thereafter subjected the aggrieved employee to an adverse employment action such that it justifies the inference of retaliatory motivation (Wille v. Hunkar Laboratories, Inc., 1998).

How Employees Should Handle and Properly Document Harassment in the Workplace.

Employees Listen Up – There is a Proper Way to Handle Workplace Harassment. Under California law, the employee must first be able to show that the employer knew or should have known that the unlawful conduct took place. In other words, the employee must be able to prove that she or he complained about the unlawful conduct to the HR department, a supervisor, or another supervisor. To avoid a he said she said situation, employees should consider not only making an oral complaint (or written if the employer has implemented such a policy), but following up with an email to the appropriate person with a copy to management that describes not only what took place, but how it affected you and continues to affect you, and the fact that you would greatly appreciate it if they would investigate the matter and ensure that it does not occur again. In essence, create a paper trail.

If the conduct reoccurs, or if a hostile work environment results, lodge a second complaint in the same manner. Also be sure to start keeping a journal in which you write down each incident of harassment. Be sure to include the date, time, place, any witnesses that were present, and how it affected you. Never leave your journal at your place of work unattended or overnight.

If the employer has a complaint process for harassment you must follow it to the letter, and keep a copy of any complaints your file and all other related documents.

If your attempts to resolve the harassment informally, or through your employer’s policy and procedures fail, file a discrimination complaint either with the Federal Equal Employment Opportunity Commission (EEOC), or with the California Department of Fair Employment and Housing (DFEH).