Can racial comments, jokes or slanders fall into the category of Sexual Harassment?

Generally, racial comments, jokes or slanders can rise to the level of actionable workplace harassment. The conduct, however, must be "severe or pervasive." This means it either has to be quite severe (for example, calling an employee the "N" word), or pervasive (which means frequent and reoccurring). A sliding scale is used to determine whether the conduct is "severe or pervasive." In other words, one isolated comment alone will only be actionable if it is quite severe, such as a threat of violence or use of the "N" word. The less severe the comments are, the more frequently and persistently the comments would need to be uttered to create an actionable hostile work environment. A few tasteless and racially-charged jokes here and there are probably not sufficient to create an actionable hostile work environment. If the comments are being made by a supervisor or somebody with managerial authority, the company is strictly liable. If the comments are being made by co-workers or customers/clients/patients the company will only be liable if the offended employee reports the harassment to management and the company does nothing to stop it. DISCLAIMER: Nothing in this message is intended to create an attorney-client relationship. The statements made herein are statements of the attorney's opinion only based on the limited information provided. The attorney will accept no professional responsibility for the contents of this message.

Thanks for your question. It is a good one. California has a very broad definition of illegal harassment. Basically, if a comment or joke makes you feel uncomfortable based on your gender (sex), sexual orientation (gay, strait), race, religion, national origin, or even a disability (an illness, mental condition, etc.) -- it is probably not lawful in the work environment. Beware that harassment and discrimination is an (unrecognized) specialty. You NEED TO TALK TO AN ATTORNEY who his experienced in sex harassment. If you need a referral to an attorney in your area, please check out the California Employment Lawyer's Association website. I can not emphasize how important it is that you talk to somebody who is experienced in these kinds of cases. Many actions that you might think would not constitute harassment -- ARE unlawful harassment. (For example, a supervisor who makes an employee uncomfortable by frequently "hovering" over her, can be sufficient to demonstrate unlawful harassment.) Please call an attorney ASAP. The response given is not intended to create, nor does it create an ongoing duty to respond to questions. The response does not form an attorney-client relationship, nor is it intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change. Attorney is licensed to practice law only in the State of California. Responses are based solely on California law unless stated otherwise.

I think there may be some confusion stemming from a fundamental concept in discrimination law (and sexual harassment usually falls under this classification). That is the concept of a "protected class." Assume for the moment that you were uncomfortable because you were becoming the focus of negative comments -- you are an ardent fan of the Dodgers and everyone else in your workplace hates the Dodgers and loves the Angels. Eventually, you are passed over for a promotion due to your Dodger loyalty, in favor of another employee who regularly wears her Angels baseball gear to work. Is there a basis for a lawsuit here? Many folks think that all forms of discrimination are wrong and that anything that causes inequality in the workplace that is not job-related can be the basis for a lawsuit. What if you love limburger cheese, which gives you incredible bad breath and stinks up the office? Can you be "discriminated against fdue to your love of cheese? Short answer: Yup. Love Listerine. And, learn to tolerate manager Mike Scioscia and his Angels. (After all, Scioscia was once a Dodger. lol) Discrimination law rests squarely on statutes. Statutes list which forms of discrimination are prohibited...like discrimination based on race, religion, gender, etc. But, these laws say nothing about protecting cheese eaters or Dodger fans. Dodger fans are not a protected class. So, you can be terminated due to your loyalty to the Dodgers and you have no grounds for a lawsuit (unless you can pull in another basis, like virtually all Dodger fans are Presbyterians or something, meaning that you were actually discriminated against due to your religion and the claim about the Dodgers was just a phony reason used to mask illegal discrimination). I offer you the above "teaching point" by way of background. Sexual harassment (a term I dislike -- I favor "gender harassment" because the term "sex" has so much baggage in our society) is one form of discrimination based on, well, gender. Race is a protected class. Racist statements that are not isolated and that are unwelcome are a solid basis for a complaint of a hostile workplace environment. Note that the law protects employees from race-based hostility, but it comes under the protected class of race, not gender (sex), so it is not a form of sexual harassment -- those are two different things. However, this may be a distinction only a law professor could live. Bottom line is the same. Forbidden by law. Be aware that isolated comments do not necessarily create a pattern and a pattern may be necessary and be aware that the employer has an affirmative duty -- that means that if the guy who regularly makes deliveries to refill the office Coke machine makes racial slurs whenever he is present, the employer must take steps to change that or the employer can be sued -- even though the guy delivering the Cokes is not an employee. Good luck. Remember that you may have to follow an internal complaint procedure. Check your employee handbook if you have one. Also, for most forms of discrimination you must make a written complaint to the EEOC or the analogous state agency (Dept of Fair Employment and Housing) before you can file a lawsuit. Beware that there can be time limits that are severe. Be aware that sometimes a good employment lawyer can overcome the time limits or lessen their effect. Also, be aware that, though the administrative process is designed to allow people to complain without hiring a lawyer, if a lawsuit is eventually necessary what was said (and written) at the administrative level can cause problems for a complainant. I generally advise people to see a lawyer earlier in the process and have some initial input from them prior to filing an administrative claim so that the claim does not come back to bite them later on in court. Many lawyers will look over a claim form for little or no fee if they sense that the person will come back to them if things get ugly.