“Hostile Work Environment” Harassment – The Law in California

Under California law, a hostile work environment is defined as offensive or harassing behavior that prevents you from comfortably carrying out your job duties. Some common examples include

• sexual harassment,
• bullying,
• threats,
• physical altercations or
• racial slurs.

Hostile work environments share similarities with workplace discrimination and quid pro quo sexual harassment, though there are differences:

Category	Hostile Work Environment	Workplace Discrimination	Quid Pro Quo Sexual Harassment
Definition	A workplace environment where pervasive or severe unwelcome conduct based on a protected characteristic (usually sex or gender) creates an intimidating or offensive working atmosphere.	Treating you unfavorably or differentially based on your protected characteristics, such as race, sex, religion, disability, or age, in terms of employment decisions or conditions.	A situation where a person in a position of power demands sexual favors or engages in unwelcome sexual advances in exchange for employment benefits or opportunities.
Type of Conduct	Offensive behavior, including sexual remarks, explicit jokes, unwelcome touching, or displaying sexually explicit material that creates a hostile or abusive atmosphere.	Treating you unfavorably based on your protected characteristics, such as hiring, firing, promotions, pay, job assignments, or terms and conditions of employment.	Unwelcome sexual advances, requests for sexual favors, or demands for sexual activity in exchange for employment benefits, promotions, or other favorable treatment.
Legal Consequences	Violation of anti-discrimination laws and potential for legal action against your employer.	Violation of anti-discrimination laws and potential for legal action against your employer.	Violation of anti-sexual harassment laws and potential for legal action against your harasser and employer.
Examples	Inappropriate comments, sexual jokes, unwelcome touching, or displaying explicit material that makes your workplace hostile.	Refusing to hire or promote you based on your race, gender, religion, disability, or other protected characteristics.1	A supervisor demanding sexual favors from you in exchange for a promotion or job security.2

Here at Shouse Law Group, we have successfully represented countless victims of hostile work environments. Below, our California employment attorneys answer frequently asked questions about hostile work environment harassment based on our vast experience of bringing – and winning – labor lawsuits.

What constitutes a hostile work environment in California?

HWE harassment is basically a form of workplace bullying. When bullying rises to the level of harassment, then you have the right to take legal action under the California Fair Employment and Housing Act (the “FEHA”).³

Workplace bullying qualifies as a hostile workplace harassment when both of the following are true:

1. The behavior involves or is because of a protected trait (such as gender, race, age, etc.); and
2. The behavior is either pervasive or severe.⁴

Protected characteristics

Protected characteristics under California’s HWE harassing state law are:

• Race,
• Religion,
• Color,
• National origin,
• Ancestry,
• Physical disability or mental disability,
• Medical condition or genetic information,
• Marital status,
• Sex (including being pregnant, giving birth, or breastfeeding),
• Age (being 40 or older),
• Gender identity or gender expression,
• Sexual orientation harassment, and
• Military/veteran status.⁵

Legal grounds

In order to provide grounds for a workplace harassment lawsuit, HWE harassment must be either pervasive or severe. This means that offensive conduct does not qualify as HWE harassing if it is:

• occasional,
• isolated,
• sporadic, or
• trivial.⁶

The behavior usually rises to the level of HWE harassment if it either

• occurs repeatedly or
• involves a threat to your physical safety or well-being.

HWEs are typically distracting to the point where you have trouble performing your job duties. Courts use both an objective and subjective “reasonable person standard” when determining whether HWE occurred. ⁷

Note that even if you are not part of a protected class, you might still have grounds for an HWE lawsuit as long as your personal safety is threatened.

See also our article on What behaviors are considered criteria for a hostile work environment?

Examples

HWE 1: Sam, who is gay, is an administrative assistant who shares a cubicle with Shelly. Shelly consistently:

• leaves homophobic messages on Sam’s desk even though he asked her to stop,
• teases Sam for being gay even after he asked her to stop,
• plays conservative radio very loud in their shared cubicle even though Sam asked her to lower the volume, and
• makes sexually-suggestive gestures at Sam when Sam is speaking to male colleagues even though Sam asked her to stop.

HWE 2: Alex, who is disabled, is an IT engineer. His colleague Ann regularly:

• places boxes in the hallway so Alex cannot move through in his wheelchair,
• belittles Alex for taking too long in the bathroom, and
• tells wheelchair jokes during company meetings.

HWE 3: Barbara is the only woman in her office. Her boss frequently:

• displays pornography on the walls,
• makes sexist jokes in front of her, and
• asks about her dating life.

Sam, Alex, and Barbara each has a case for a hostile work environment. They are being targeted in a pervasive and/or severe way, and any reasonable person in their position would feel distressed, threatened, and hampered from doing work.

Who can be sued for HWE harassment?

HWE harassing behavior can be committed by anyone in the workplace.⁸ (This contrasts with quid pro quo sexual harassment, which generally requires that the harasser be someone in a supervisory role.)

For example, HWE harassment under the Fair Employment and Housing Act can be perpetrated by rank-and-file workers against a coworker. It can also be perpetrated by people who are not even employees – such as

• contractors,
• clients, and
• customers.⁹

Supervisors v. non-supervisors

If HWE harassment is committed by someone other than a supervisor, it is generally harder for you to hold your employer responsible.

That is because when a supervisor harasses you, then the employer is strictly liable for the harassment–even if the employer’s behavior was not negligent in any way. However, if someone other than a supervisor commits hostile work environment harassment, then the employer is only liable if the employer behaved negligently.¹⁰

How an employer responds when an employee complains of harassment may be key to the question of whether the employer was negligent or not.

How do I prove a hostile work environment in California?

In our extensive experience achieving legal victories for clients subjected to hostile work environments by predatory employers, we know it is vital that you keep a journal where you document in detail every instance of abuse and harassment (including dates and times, involved parties, and how it impacted your work performance). If possible, you should also gather and preserve all available evidence, such as:

• Recorded communications (such as texts, emails, voicemails, etc.) that show the abuse or harassment – take screenshots or print them with timestamps;
• Video or audio of the unwelcome conduct, offensive jokes, etc. (note that it is usually illegal to record conversations without everyone’s consent in California);
• Names and contact information of eyewitnesses of the hostile working conditions and offensive behavior;
• Any internal memos or other work documents that indicate abuse or harassment occurred; and/or
• Responses from Human Resources to any complaints, especially if they show that the company did not take the harassment seriously, did not try to stop it immediately, and did not come to a good-faith, rational conclusion.

Since we are the ones bringing the lawsuit, the burden of proof is on us to hold your employer liable. The more evidence you can provide of the unwelcome conduct, the easier it is for us to prove a hostile work environment claim.

Also, do not share your evidence with your colleagues. Allow your attorney to determine the best way to use it.

What should I do if I am in a hostile work environment?

Human Resources

First, try contacting your company’s Human Resources department. Certainly, this can make for an uncomfortable situation if the person creating the hostile work environment is employed there due to nepotism and therefore gets special treatment.

Businesses in California are legally required to address hostile work environment situations responsibly and promptly. Ideally, your company should separate you from your harassers and possibly bring in a neutral third-party investigator.

If your employer’s investigation confirms that you were harassed, it should impose appropriate disciplinary action such as a warning, training, suspension, or termination. Even if no violation is substantiated, your employer should still take reasonable steps to safeguard you from potential retaliation.

File a complaint

If going to HR does not rectify the situation, you can then file a complaint with the California Civil Rights Department (CRD), formerly the Department of Fair Employment and Housing (DFEH). There is a three-year statute of limitations to file a claim.¹¹

CRD will then investigate the matter and try to resolve the situation using free dispute resolution methods, including mediation if necessary. Alternatively, you can request a “right-to-sue” letter from the CRD in order to bring a traditional lawsuit.

Contact an attorney

In any case, you are encouraged to consult us right away to discuss your legal options and goals for relief, be they money, job advancement, or simply an end to the HWE.

From our decades of combined experience, we know all the best tactics for holding employers to account. In many hostile work environment cases, we can remedy your situation through negotiation alone and without having to bring a formal lawsuit.

Seek support and stay calm

For many people, problems at work are no less devastating than problems at home. If you need, seek out a therapist. Your employer may also have an employee assistance program (EAP) that can help you cope.

In the meantime, do not get emotional at work or act in any way that your employer can use against you. Fight the urge to retaliate, use profanity, or to “get back” at the people harming you. Even though you are in the right, acting unprofessionally only weakens your case.

Potential damages

Each HWE case is different. Depending on your case and whether you go through the CRD or the courts, we may be able to secure the following remedies:

• a cessation of the behavior causing the hostile work environment
• backpay plus interest
• emotional distress damages
• punitive damages
• attorney’s fees and court costs

Is a hostile work environment different from discrimination?

Both harassing conduct and discrimination in the workplace are prohibited by the FEHA. Though people are often confused about the difference between the two.

• Simply put, hostile work environment harassment occurs when someone in the workplace mistreats you based on your gender, race, national origin, sexual orientation, disability, etc., in a way that falls outside the job description of the person committing the harassment.
• By contrast, employment discrimination occurs when an employer or manager treats you differently on the basis of prohibited categories while performing acts that ARE part of the job description of the person committing discrimination.¹²

So, for example, if a supervisor regularly directed sexist, abusive comments toward you, that would be a hostile work environment harassing. Though if that same supervisor tended to give promotions and raises only to men, that would be employment discrimination.

Is a hostile work environment different from quid pro quo sexual harassment?

While both hostile work environment and quid pro quo sexual harassment are forms of workplace harassment prohibited under FEHA, they differ in their focus, nature, and the type of behavior involved.

Hostile work environment is about creating a pervasive atmosphere of hostility or offensiveness. This harassment is often sexual- or gender-based, but it can be based on non-sexual characteristics. Meanwhile, quid pro quo sexual harassment involves explicit or implied demands for sexual activity in exchange for employment benefits or opportunities.

For additional help…

Have you been a victim of a hostile work environment? Contact our California labor attorneys for legal advice. We have a long track record of bringing successful employment actions with sizable settlements.

See our related article, “Stress Leave” in California – Are workers entitled to it?

Also see our article on HWE and employee rights in Nevada.

Additional Resources:

• U.S. Equal Employment Opportunity Commission (EEOC)
• California Department of Fair Employment and Housing (CRD) Workplace Poster Regarding Discrimination
• Civil Rights Act of 1964
• Age Discrimination in Employment Act of 1967

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