"Hostile Work Environment" Harassment
Explained by California Employment Attorneys

"Hostile work environment" harassment under California's Fair Employment and Housing Act consists of inappropriate behavior in the workplace that is either severe or pervasive enough to create an abusive work atmosphere for one or more employees.1 

Hostile work harassment may be sexual or gender-based harassment--but it may also be non-sexual harassment, such as harassment on the basis of race/ethnicity, religious harassment, disability harassment, etc.

Other important things to know about hostile work environment ("HWE") harassment are:

"Hostile work environment" 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

Employees-gossiping-about-male-colleague
Hostile work environment harassment can be based on sex, race, religion, nationality, sexual orientation, or numerous other categories.

Below, our California workplace harassment lawyers answer frequently asked questions about hostile work environment harassment in California employment law:

When does workplace bullying rise to the level of hostile work environment harassment?

Hostile work environment harassment is basically a form of workplace bullying. When bullying rises to the level of harassment, then the harassed employee has the right to take legal action under the California Fair Employment and Housing Act (the "FEHA").3

Workplace bullying meets the legal definition of HWE 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 traits under California's hostile work environment harassment law are:

  • Race,
  • Religion,
  • Color,
  • National origin,
  • Ancestry,
  • Physical or mental disability,
  • Medical condition or genetic information,
  • Marital status,
  • Sex,
  • Gender,
  • Gender identity or gender expression,
  • Age,
  • Sexual orientation harassment, and
  • Military/veteran status.5
Muslim-female-employee-at-computer
Hostile work environment harassment on the basis of religion is prohibited by the Fair Employment and Housing Act

In order to provide grounds for a workplace harassment lawsuit, HWE harassment must be either pervasive or severe. This means that behavior doesn't qualify as hostile work environment harassment if it is:

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

In practice, this means that behavior usually rises to the level of hostile work environment harassment if it either occurs repeatedly, or involves a threat to the victim's physical safety or well-being.7

Who can commit workplace HWE harassment?

Hostile work environment harassment can be committed by anyone in the workplace.8 (This contrasts with quid pro quo sexual harassment, which generally needs to be committed by someone in a supervisor 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--independent contractors, clients, and customers, for example.9

But if hostile work environment harassment is committed by someone other than a supervisor, it is generally harder for the harassment victim to hold their employer responsible.

Man-holding-paper-labeled-lawsuit
It is easier for an employee to successfully sue an employer for hostile work environment harassment if the harasser is a supervisor.

That is because, when someone is harassed by a supervisor, then the employer is strictly 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.

What is the difference between hostile work environment harassment and employment discrimination?

Both harassment 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.

In contrast, employment discrimination occurs when an employer or supervisor treats different employees differently on the basis of prohibited categories while 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 hostile work environment harassment. But if that same supervisor tended to give promotions and raises only to men, that would be employment discrimination.

Call us for help....

Labor-employment-law-firm-call-center

For questions about hostile work environment harassment under California's Fair Employment and Housing Act, or to discuss your case confidentially with one of our skilled California labor and employment attorneys, do not hesitate to contact us at Shouse Law Group.

We have local employment law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.

Additional Resources:

California DFEH Workplace Poster Regarding Discrimination and Harassment


Legal References:

  1. 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 harassment, where a term of employment is conditioned upon submission to unwelcome sexual advances, and hostile work environment, where the harassment is sufficiently pervasive so as to alter the conditions of employment and create an abusive work environment.”)
  2. Same.
  3. Government Code 12940 GC -- Employers, labor organizations, employment agencies and other persons; unlawful employment practice; exceptions [California workplace harassment law]. (“It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California: . . . (j)(1) For an employer, labor organization, employment agency, apprenticeship training program or any training program leading to employment, or any other person, because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, to harass an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract. Harassment of an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract by an employee, other than an agent or supervisor, shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action. An employer may also be responsible for the acts of nonemployees, with respect to sexual harassment of employees, applicants, unpaid interns or volunteers, or persons providing services pursuant to a contract in the workplace, where the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing cases involving the acts of nonemployees, the extent of the employer's control and any other legal responsibility that the employer may have with respect to the conduct of those nonemployees shall be considered. An entity shall take all reasonable steps to prevent harassment from occurring. Loss of tangible job benefits shall not be necessary in order to establish harassment. (2) The provisions of this subdivision are declaratory of existing law, except for the new duties imposed on employers with regard to harassment. (3) An employee of an entity subject to this subdivision is personally liable for any harassment prohibited by this section that is perpetrated by the employee, regardless of whether the employer or covered entity knows or should have known of the conduct and fails to take immediate and appropriate corrective action. (4)(A) For purposes of this subdivision only, “employer” means any person regularly employing one or more persons or regularly receiving the services of one or more persons providing services pursuant to a contract, or any person acting as an agent of an employer, directly or indirectly, the state, or any political or civil subdivision of the state, and cities. The definition of “employer” in subdivision (d) of Section 12926 applies to all provisions of this section other than this subdivision. (B) Notwithstanding subparagraph (A), for purposes of this subdivision, “employer” does not include a religious association or corporation not organized for private profit, except as provided in Section 12926.2. (C) For purposes of this subdivision, “harassment” because of sex includes sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions. Sexually harassing conduct need not be motivated by sexual desire.”)
  4. Hughes v. Pair (2009) 46 Cal.4th 1035, 1042. 
  5. Government Code 12940 GC -- Employers, labor organizations, employment agencies and other persons; unlawful employment practice; exceptions [California workplace harassment law], endnote 3 above.
  6. Hughes v. Pair, endnote 4 above, at 1043.
  7. Same, at 1042-44.
  8. Government Code 12940 GC -- Employers, labor organizations, employment agencies and other persons; unlawful employment practice; exceptions [California workplace harassment law], endnote 3 above.
  9. Same.
  10. Same. See also Department of Health Services v. Superior Court (2001). 94 Cal. App. 4th 14.
  11. Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 869-70. ("Harassment is distinguishable from discrimination under the FEHA. “[D]iscrimination refers to bias in the exercise of official actions on behalf of the employer, and harassment refers to bias that is expressed or communicated through interpersonal relations in the workplace.” (Roby v. McKesson, Corp., supra, 47 Cal.4th p. 686, 707, 101 Cal.Rptr.3d 773, 219 P.3d 749.) 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 harassment 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.”")

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