Difference Between Workplace Discrimination and Harassment

workplace harassment caseThe Sixth District Court of Appeal recently explained in Serri v. Santa Clara University (2014), that unlawful harassment consists of conduct which is not necessary to one’s job performance and is “presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives (citing Reno v. Baird (1998)) and “is distinguishable from discrimination,” with the latter referring to bias in the exercise of official actions on behalf of the employer. The Sixth District added, “the Legislature intended that commonly necessary personnel management actions such as hiring and firing, job or project assignments, office or work station assignments, promotion or demotion, performance evaluations, the provision of support, the assignment or non-assignment of supervisory functions, deciding who will and who will not attend meetings, deciding who will be laid off, and the like, do not come within the meaning of harassment” since “these are actions of a type necessary to carry out the duties of business and personnel management” and “may retrospectively be found discriminatory if based on improper motives, but in that event the remedies provided by the FEHA laws are those for discrimination, not harassment.”; See also 2. Cal. Code of Regs. §11019(b)(1) where unlawful verbal, physical and visual harassment is defined.

For a workplace to be hostile, the harassment must be severe or pervasive. Lyle v. Warner Bros. (2006) Isolated incidents do not create a hostile environment under the law. In determining what constitutes ‘sufficiently pervasive’ harassment, the courts have held that acts of harassment cannot be occasional, isolated, sporadic, or trivial, rather the plaintiff must show a concerted pattern of harassment of a repeated, routine or a generalized nature. Thus, the employee-victim must show that the harassment at issue was “sufficiently severe or pervasive” so as to alter the terms and conditions of her employment and create an abusive working environment. Fisher v. San Pedro Peninsula Hosp. (1989). Again, harassment “cannot be occasional, isolated, sporadic, or trivial; rather the plaintiff must show a concerted pattern of harassment of a repeated, routine or a generalized nature.” Aguilar v. Avis Rent A Car Sys., Inc. (1999).

The question of whether conduct is sufficiently severe or pervasive is based on the totality of the circumstances of the workplace environment. It takes into consideration such factors as (1) the frequency of the conduct; (2) the severity of the conduct; (3) whether the conduct is physically threatening or humiliating or a mere offensive utterance; and (4) whether the conduct unreasonably interferes with the employee’s work performance. Mokler v. County of Orange (2007). Racially hostile workplace allegations are analyzed from the perspective of a reasonable person belonging the same racial/ethnic group as the plaintiff. Nazir v. United Airlines, Inc. (2009).

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