Employment Law Alert: Discriminatory Harassment

December 01, 2009

In California, workplace harassment is the basis of over 25% of the new claims filed with the Department of Fair Employment and Housing.  Many of these claims are based on a “hostile environment” theory, namely that there is unwelcome conduct of a discriminatory nature that is so severe or pervasive that it creates an offensive or hostile work environment. 

While the most common claim is based on sexual harassment, discriminatory harassment on the basis of disability, race, religion, sexual orientation or age can also occur.  California employers who fail to provide a workplace free of harassment face costly civil litigation and administrative action.

With the universal use of electronic media in the workplace, inappropriate sexual content is more easily accessed and introduced into the workplace, and has become part of the evidence in many “hostile environment” harassment cases.  Where twenty years ago, there were complaints of “pin-up posters”, now complaints are made of e-mail jokes, screensavers, and even photos posted on the internet. 

Effective policies that prohibit the downloading or transmission of offensive content and allow employers to monitor the workplace use of electronic media are essential to minimizing the litigation risks.

Hostile Environment Claims
“Hostile environment” harassment claims can be based on verbal conduct alone.  The intent of the person sending or forwarding the offensive content is irrelevant.  Instead, the harassing nature of the communication is judged from the perspective of the person receiving or viewing the material, even if he or she is not the intended recipient.  Thus, a claim can exist even where the offensive content is posted on a non-employer internet site or transmitted into the workplace on personal computers and cell phones. 

For example, unwelcome sexual conduct can consist of jokes, slurs, nicknames, terms of endearment, as well as photos, screensavers or videos, whether transmitted or merely downloaded and stored where it may be accessed by others in the workplace.  It can also occur where a manager or co-worker excessively texts or sends e-mails after hours, particularly if they are of a personal nature (e.g., “Where R U?” “Whassup?” or “U R 2hot2blve”) or takes digital photos using a cell phone and disseminating them without a person’s consent.  In extreme cases, an employee may claim that he or she is being stalked.

Today’s employers find providing a work-environment free of offensive conduct more difficult.  Employees who are entering the workforce for the first-time may have misconceptions of what is appropriate workplace conduct, based on what they see in the media (e.g., television shows such as “The Office”), and at the same time are more likely to use e-mail, text messaging and social networking sites. 

Company-wide policies and training on recognizing and preventing sexual harassment need to address virtual sexual harassment and remind employees that the company may monitor and inspect electronic communications that affect the workplace.

Minimize Liability Risk
Employers who wish to minimize their risks of liability should review and update both their written policies on recognizing and preventing discriminatory harassment as well as their electronic communications policies.  Specifically, the company’s anti-harassment policy should prohibit the misuse of electronic communications devices. 

The electronic communication policy should ban the use of any electronic device, internet access or messaging service for the purposes of discriminatory harassment on any protected basis, including sex, race, age, disability, or religion. 

The policies should broadly define electronic devices and forms of electronic communications to cover new technologies and media, as well as new forms of communication, such as social networking sites. 

Many employers are finding an alarming amount of use of company time and computers to access and “update” social networking sites – often with pictures and content that is inappropriate in the workplace.

Company policies should preserve the employer’s right to review electronic communications and thereby minimize the risk of invasion of privacy claims.  An employee’s right to privacy is determined in light of the legitimate needs of the employer to provide a work environment free of harassment. 

The scope of the employee’s right to privacy can be limited if the employer clearly communicates that the employee should have no expectation of privacy in any contact information, or the content of any information transmitted, downloaded or stored using company hardware, software or servers. 

Further, employers should expressly reserve the right to inspect any electronic device that is provided by the employer or which uses employer provided electronic services, e.g. e-mail, internet access or text messaging.

IT Access Key to Effectiveness
As with all company policies that address discrimination and harassment, the company policy should provide a means for employees to report instances of discrimination and harassment, as well as for the investigation and administration of action to prevent further harassment. 

Key to the effectiveness of any investigation is the ability of the company’s IT department to access, review and copy internet use records, e-mail files, and any information that is transmitted, downloaded or stored on computers used in the workplace.

Virtual sexual harassment is no different than any other unwelcome verbal conduct of a sexual nature – if it is so severe or pervasive that it creates a hostile or offensive working environment, it may result in legal liability under State and Federal discrimination laws.  Technological advances have expanded the boundaries of the workplace and require updated policies and training on recognizing and preventing sexual harassment and electronic communications. 

Additionally, employers must have the technological capability to investigate misconduct in violation of those policies. A system of effective policies, trainings and IT practices is part of an effective defense for employers.

Attorneys in the Berliner Cohen Employment group will be pleased to provide further information regarding the matters discussed in this Alert:

Roberta S. Hayashi

Christine Long

Kara L. Arguello



©2009 Berliner Cohen.  This article is not intended to and does not constitute legal advice or a solicitation for the formation of an attorney-client relationship and no attorney-client relationship is created through your use of the Berliner Site or your receipt of the materials.

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