In California, a hostile work environment is defined as inappropriate behavior in the workplace that is either severeor pervasive enough to create an abusive work atmosphere for one or more employees. This form ofworkplace harassment is prohibited under the Fair Employment and Housing Act.
Hostile workharassment may be sexual or gender-based harassment – but it may also be non-sexual harassment, such as harassment on the basis of
- religious harassment,
- disability harassment, or
- other actual or perceived protected characteristics.
Important things to know about hostile work environment (“HWE”) harassment are:
- HWEharassment can be committed by non-supervisors as well as by supervisors; and
- Hostile work environment harassment is distinct from workplace discrimination–but the two can easily be confused with each other and often go hand-in-hand.1
HWE harassment is one of the two major types of harassment recognized by California employment law. The other is “quid pro quo” sexual harassment, in which a supervisor attempts to trade an employment benefit for sexual favors. 2
Below, our California employment attorneys answer frequently asked questions about hostile environment harassment in California employment law:
How does California law define a hostile work environment?
HWE harassing is basically a form of workplace bullying. When bullying rises to the level of harassing, then the harassedemployee has 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:
- The behaviorinvolves or is because of a protected trait (such as gender, race, age, etc.); and
- The behavior is either pervasiveor severe.4
Protected characteristics under California’s HWE harassing state law are:
- National origin,
- Physical disability or mental disability,
- Medical condition or genetic information,
- Marital status,
- Sex (including being pregnant, giving birth, or breastfeeding),
- Gender (being 40 or older),
- Gender identity or gender expression,
- Sexual orientation harassment,and
- Military/veteran status.5
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:
- sporadic, or
Behavior usually rises to the level of HWE harassment if it either occurs repeatedly or involves a threat to the victim’s physical safety or well-being. Courts use both an objective and subjective “reasonable person standard” when determining whether HWE occurred.7
Note that workers who are not part of a protected class might still have grounds for an HWE lawsuit as long as their personal safety is threatened.
See also our article on What behaviors are considered criteria for a hostile work environment?
Hostile behaviors that make the workplace intolerable can be direct or subtle.
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.)
So, 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
- clients, and
But if HWE harassment is committed by someone other than a supervisor, it is generally harder for the harassment victim to hold their employer responsible.
That is because, when someone is harassed by a supervisor, then the employer isstrictly liable for the harassment–even if the employer’s behavior was not negligent in any way. But if someone other than a supervisor commits hostile work environment harassment, then the employer is only liable if it 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.
Is a hostile work environment different from discrimination?
Both harassing conduct and discrimination in the workplace are prohibited by the FEHA. But employees and employers are often confused about the difference between the two.
Simply put, hostile work environment harassment occurs when someone in the workplace mistreats another person based on their 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 supervisor treats different employees differently on the basis of prohibited categorieswhile performing acts that ARE part of the job description of the person committing discrimination.11
So, for example, if a supervisor regularly directed sexist, abusive comments toward female employees, that would be a hostile work environment harassing. But if that same supervisor tended to give promotions and raises only to men, that would be employment discrimination.
How do I prove a hostile work environment in California?
Victims of a hostile work environment are encouraged to document every instance of abuse and harassment (including dates and times, involved parties, and how it impacted the employee’s work performance). And if possible, victims should gather and preserve all available evidence, such as:
- Recorded communications (such as texts, emails, voicemails, etc.) that show the abuse or harassment;
- 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.
The more evidence victims have of the unwelcome conduct, the easier it is for their employment law attorneys to prove a hostile work environment claim.
What should I do if I am in a hostile work environment?
HWE victims can contact Human Resources at their company. If that does not rectify the situation, victims 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.12)
CRD will then investigate the matter and try to resolve the situation using free dispute-resolution methods, including mediation if necessary. Alternatively, victims can request a “right-to-sue” letter from the CRD in order to bring a traditional lawsuit.
In any case, HWE victims are encouraged to consult an employment law attorney right away to discuss their legal options and goals for relief.
For additional help…
Have you been a victim of hostile behavior in the workplace? Contact our California labor attorneys for legal advice. We can discuss bringing an employment action on your behalf.
Also see our article on HWE and employee rights in Nevada.
- 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
- Holmes v. Petrovich Development Co. (2011) 191 Cal.App.4th 1047, 1058-59. (“There are two theories upon which sexual harassment may be alleged: quid pro quo haras[sing], where a term of employment is conditioned upon submission to unwelcome sexual advances, and hostile work environment, where the harass[ing] is sufficiently pervasive so as to alter the conditions of employment and create an abusive work environment.”). California Government Code 12923 (“A single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment if the harassing conduct has unreasonably interfered with the plaintiff’s work performance or created an intimidating, hostile, or offensive working environment…The existence of a hostile work environment depends upon the totality of the circumstances and a discriminatory remark, even if not made directly in the context of an employment decision or uttered by a nondecisionmaker, may be relevant, circumstantial evidence of discrimination.”).
- Same. See also Pollock v. Tri-Modal Distribution Services, Inc. (2021) 11 Cal. 5th 918; Patterson v. Superior Court (Court of Appeal of California, Second Appellate District, Division Seven, 2021) 70 Cal. App. 5th 473.
- Government Code 12940 GC — Employers, labor organizations, employment agencies and other persons; unlawful employment practice; exceptions [California workplace harassment law]. Government Code §§12900 – 12996 (codified in 1959).
- Hughes v. Pair (2009) 46 Cal.4th 1035, 1042.
- Government Code 12940 GC; it is also a federal law violation of civil rights under Title VII for employers throughout the United States to discriminate against protected classes.
- Hughes v. Pair, endnote 4 above, at 1043.
- Same, at 1042-44. Lyle v. Warner Brothers Television Productions (2006) 38 Cal. 4th 264.
- Government Code 12940 GC — Employers, labor organizations, employment agencies and other persons; unlawful employment practice; exceptions, endnote 3 above. See also Ali Zaslav and Jessica Dean, “Senate passes sweeping overhaul of workplace sexual misconduct law“, CNN (February 10, 2022)(“The bill, called Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, bans forced arbitration in cases involving sexual misconduct and allows victims the option of bringing up the dispute in federal, tribal or state court.”).
- Same. See alsoDepartment of Health Services v. Superior Court (2001) 94 Cal. App. 4th 14.
- Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 869-70. (“Harass[ing] is distinguishable from discrimination under the FEHA. “[D]iscrimination refers to bias in the exercise of official actions on behalf of the employer, and harass[ing] refers to bias that is expressed or communicated through interpersonal relations in the workplace.” (Roby v. McKesson, Corp., supra, 47 Cal.4th p. 686.) As our high court explained in Reno v. Baird, “Harassment claims are based on a type of conduct that is avoidable and unnecessary to job performance. No supervisory employee needs to use slurs or derogatory drawings, to physically interfere with freedom of movement, to engage in unwanted sexual advances, etc., in order to carry out the legitimate objectives of personnel management. Every supervisory employee can insulate himself or herself from claims of harass[ing] by refraining from such conduct. An individual supervisory employee cannot, however, refrain from engaging in the type of conduct which could later give rise to a discrimination claim. Making personnel decisions is an inherent and unavoidable part of the supervisory function. Without making personnel decisions, a supervisory employee simply cannot perform his or her job duties.”)
- California Assembly Bill 9 (2019). California Government Code 12960. See also Alexander v. Community Hospital of Long Beach (Court of Appeal of California, Second Appellate District, Division One, 2020) 46 Cal. App. 5th 238; Brome v. Dept. of the California Highway Patrol (Court of Appeal of California, First Appellate District, Division Five, 2020) 44 Cal. App. 5th 786.