Many workers in California are forced to deal with workplace harassment and discrimination. While these two terms are often used together, they are distinct. Discrimination usually involves work-related unfair treatment based on a protected category like race or gender. For example, if a woman is denied a promotion due the fact she is a woman, she is the subject of discrimination. Harassment may happen at work, but it isn’t directly related to work. A manager may make belittling or derogatory comments about a person’s religion, for example. While these two issues are separate, with differing legal standards, they also share a critical link that employers may overlook.
This issue was brought to the world’s attention when Nike was dramatically affected by a harassment survey of its employees. The survey resulted in six top executives resigning. This harassment survey prompted a discussion about the link between harassment and later discrimination.
The legal standards for harassment claims are extremely high. Even situations that would seem obvious from a common-sense standpoint may not meet the technical requirements for a claim. To offset this, many companies adopt broad harassment policies but could refuse to act on them. The issue arises when an employee who has been filing harassment complaints then follows up with a discrimination complaint as well. Discrimination cases are often determined by examining the employer or supervisor’s state of mind based on actions. A supervisor with many harassment complaints becomes an extreme liability in a discrimination case, even if none of those complaints were acted upon.
It is important for employees to remain aware of this important relationship between harassment and discrimination; it is not uncommon for harassment to precede discrimination. An employee and his or her attorney may consider this link when planning their discrimination claim even if they cannot act on the harassment itself.
