Q: I feel I am being harassed at work and my manager is not doing enough to stop it. My manager is calling asking me to come back, but I’m afraid I will have a mental breakdown if I do. I work in a residential rehab facility. One of the patients keeps asking me to be his girlfriend. I tried to ignore his advances, but it just made him more vulgar and aggressive. I feel scared of what he might do.
I complained to my manager, and asked about the sexual harassment policy they talked about at training. She told me that was company policy for employees, but that she can’t really do anything about patients’ behavior. I feel like I’m in danger at work and my employer won’t do anything until something bad happens to me. Is that really the law?
A: No, the law requires far more than what your employer said to you. Under California’s Fair Employment and Housing Act (“FEHA”), workplace harassment is unlawful if it is based on “race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or veteran or military status.” California Government Code § 12940(j)(1). Sexual harassment is considered unlawful harassment based on sex. California Government Code § 12940(j)(4)(C).
Contrary to what your manager told you, an employer’s obligation to maintain a workplace free of unlawful harassment is not limited to only harassment committed by the employer’s own employees. Rather, FEHA emphasizes that “[a]n employer may also be responsible for the acts of nonemployees, with respect to harassment of employees… if the employer, or its agents, or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action. California Government Code § 12940(j)(1).
The California Supreme Court confirmed this affirmative obligation of employers in Carter v. California Department of Veterans Affairs, a case with facts very similar to yours. In Carter, a nurse was being sexually harassed by a tenant resident in a California VA facility. The Court agreed with the plaintiff there that FEHA imposes liability on an employer when its customers or clients sexually harassed its employees.
Under FEHA, employers have an obligation to take immediate and appropriate corrective action if its customers or clients unlawfully harasses employees based on “race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or veteran or military status.” California Government Code § 12940(j)(1).
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The Law Offices of C. Joe Sayas, Jr. welcomes inquiries about this topic. All inquiries are confidential and at no-cost. You can contact the office at (818) 291-0088 or visit www.joesayaslaw.com. [For more than 25 years, C. Joe Sayas, Jr., Esq. successfully recovered wages and other monetary damages for thousands of employees and consumers. He was named Top Labor & Employment Attorney in California by the Daily Journal, selected as Super Lawyer by the Los Angeles Magazine for 11 years, and is a past Presidential Awardee for Outstanding Filipino Overseas.]
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