Generally, inappropriate workplace behavior that is either severe or pervasive qualifies as a hostile working environment. Workplace behavior is inappropriate if it amounts to harassment. Conduct can be harassment if it targets someone’s protected trait and is unwelcome.
If the hostile working environment was created by your supervisor, you may be able to hold your employer liable by way of a lawsuit.
What are the signs of a hostile work environment?
There are numerous signs that a working environment has become hostile. Some common signs and red flags include:
- coworkers making fun of someone,
- supervisors treating certain people with less respect than others,
- career opportunities or sought-after workplace benefits only being offered to certain people,
- workplace rules that only seem to apply to certain people and not to others,
- an exclusive group of workers and supervisors,
- a workplace that is filled with potentially offensive or off-color décor,
- a culture that uses public shaming,
- blatant favoritism,
- supervisors disciplining subordinates loudly and in public,
- bystanders feeling awkward about the conduct of their coworkers, and
- the target of the unwelcome conduct struggling to stay productive in the workplace or suffering from anxiety.
These signs fall into 3 general types of conduct:
- non-verbal, and
Examples of verbal conduct include:
- off-color, discriminatory, or offensive jokes,
- racial slurs or epithets, and
- sexual innuendos.
Examples of non-verbal conduct can include:
- bystanders laughing at or encouraging behavior that is harassing, and
- sexually-themed physical humor.
Environmental conduct can also amount to harassment and create a hostile environment in the workplace. Examples include:
- an understanding that certain groups of people never advance in the workplace,
- unequal pay, and
- a workplace that is offensive to certain people, like an office space that allows or even encourages employees to post sexually-explicit pictures in their cubicles.
It can be helpful to think of a hostile work environment being the product of workplace bullying. The severe or pervasive workplace behavior is extremely similar to bullying. If that behavior targets one of your protected traits, it can amount to workplace harassment. This can be the grounds for a hostile working environment claim.
What traits are legally protected in the workplace?
Certain traits are legally recognized as being immutable, or as being unfair to force or coerce someone to change in order to avoid harassing behavior. Under federal law, most commonly under Title VII of the Civil Rights Act of 1964, these traits fall into the following protected classes:
- national origin,
- sexual orientation,
- gender identity and expression,
- marital status, and
The number of protected traits can surprise people. Many workers think that only sexual harassment can create a hostile working environment. That is not the case. While many workplaces are hostile because of sexual harassment, not all are.
When is harassment severe or pervasive?
In order to become a hostile working environment, harassment that targets a protected class must be either:
- severe, or
You do not have to show that it was both severe and pervasive; only that it was one or the other.3 However, you do have to show that it was severe or pervasive enough to alter your working conditions.4 This involves looking at all of the circumstances surrounding your case.5
This means that creating a hostile work environment will take more than unwelcome and inappropriate workplace behavior that is:
- occasional, or
Generally, a single, isolated incident will not suffice to create a hostile working environment.7 However, even when alone, extremely severe incidents in the workplace can be enough. Some examples include:
- physical assault,
- sexual assault,
- rape, or
- a hate crime.
For less severe conduct, creating a hostile working environment must be pervasive. This often requires relatively trivial conduct, like off-color jokes, to be made relentlessly nearly every day for at least several months.8
Some factors that have been used to determine whether unwelcome conduct amounted to harassment that created a hostile workplace include:
- the frequency of the offensive conduct,
- whether the offensive behavior was verbal, physical, or both,
- the employment status of the alleged harasser, particularly if he or she was a supervisor,
- whether others joined in on the inappropriate behavior,
- whether there was more than one target for the behavior or if just a single person was being isolated,
- whether the conduct was threatening or humiliating, and
- whether the conduct ended up having a negative impact on the targeted employee’s work.9
The hostile behavior has to be offensive, both:
- subjectively, and
This means that it must have been offensive to you, personally, and would have been offensive to a reasonable person in your circumstances.11 However, some states use a variation of the reasonable person standard in some situations. For example, in sexual harassment cases where the target was female, they may use the objective standard of a reasonable woman in similar circumstances.12
Who can create a hostile workplace?
Anyone can create a hostile workplace, including:
- coworkers, and
- third parties, like vendors, business associates, clients, or customers.
However, the parties who are responsible for creating the hostile workplace can matter for employer liability.
When can I hold my employer liable?
If you have been subjected to a hostile working environment, you may be able to hold your employer liable for it. However, you can generally only hold your employer liable if it was a supervisor who created the hostile workplace. This is because your supervisor is generally seen as acting on behalf of your employer.13
However, if the harassment came from coworkers or non-employees and your employer was aware of it but did nothing to rectify it, you may still hold your employer liable.14
What compensation can I recover in a lawsuit?
If you prove that you were the victim of a hostile work environment, you are entitled to compensation. That includes financial compensation for your emotional distress and any medical conditions caused by the stress of your hostile workplace. It also includes professional losses, like lost wages.
What is the law in California?
In California, you generally have to prove the following elements by a preponderance of the evidence to succeed in a hostile working environment claim:
- you were an employee of the defendant,
- you were subjected to harassing conduct because you had a protected status or trait, were perceived to have one, or associated with those that did,
- the conduct was severe or pervasive,
- a reasonable person in your circumstances would have found the workplace to be hostile, offensive, oppressive, abusive, or intimidating,
- you found the workplace to be hostile, offensive, oppressive, abusive, or intimidating,
- either the supervisor engaged in the conduct or the employer or its agents should have known of the conduct, but failed to take immediate and appropriate corrective action,
- you were harmed, and
- the harassing conduct was a substantial factor in causing your harm.15
California has one of the state laws that do not always use the objective standard of a reasonable person. For example, in a claim involving a racially hostile workplace, the objective standard is a reasonable person from your racial or ethnic group.16
Even if the harassment does not target your protected class, you may still have grounds to file a hostile work environment claim in California if your personal safety is threatened. California also recognizes some additional protected characteristics, including:
- medical condition,
- genetic information, and
- military or veteran status.17
In California, workplace harassment is different from employment discrimination. Harassment is unwelcome conduct that targets a protected trait in a way that alters your working conditions. Discrimination is when the employer or supervisor treats employees differently based on their protected traits while in the exercise of the supervisor’s official duties.18
What should I do if I am in a hostile workplace?
If you think that you are in a hostile working environment, you should start by contacting your company’s Human Resources Department. Even if you do not think that this will change anything, it is often a required first step toward making a formal complaint.
If your situation does not adequately improve, you can file a complaint with the California Department of Fair Employment and Housing (DFEH) and the U.S. Equal Employment Opportunity Commission (EEOC). This will trigger an investigation. These agencies will try to use alternative dispute resolution methods, like mediation, to resolve the dispute. If they uncover evidence of misconduct in your workplace, they may pursue legal action on your behalf. More often, though, they will issue you a “right to sue” letter that lets you proceed on your own. You can then file a lawsuit in state or federal court.
Before taking your case to the DFEH or the EEOC, it is often wise to get the legal advice of a lawyer from a reputable law firm with experience in your state’s employment law.
- 42 USC 2000e et seq. See also 29 USC 621 et seq. (the Age Discrimination in Employment Act of 1967 (ADEA)) and Americans with Disabilities Act of 1990 (ADA) (Pub. L. No. 101-336).
- See 29 CFR 1604.11 and Meritor Savings Bank, FSB v. Vinson, 106 S.Ct. 2399 (1986) (sexual harassment).
- Redd v. New York Division of Parole, 678 F.3d 166 (2d Cir. 2012).
- Faragher v. City of Boca Raton, 118 S.Ct. 2275 (1998).
- Meritor Savings Bank, FSB v. Vinson, 106 S.Ct. 2399 (1986).
- Clark County School District v. Breeden, 121 S.Ct. 1508 (2001).
- See, e.g., Rosario v. Department of the Army, 607 F.3d 241 (1st Cir. 2010).
- Harris v. Forklift Systems, Inc., 114 S.Ct. 367 (1993).
- Oncale v. Sundowner Offshore Services, Inc., 118 S.Ct. 998 (1998).
- See Ellison v. Brady, 924 F.2d 872 (9th Cir. 1991).
- Vance v. Ball State University, 133 S.Ct. 2434 (2013).
- California Civil Jury Instructions (CACI) No. 2521A.
- McGinest v. GTE Service Corp., 360 F.3d 1103 (9th Cir. 2004).
- California Labor Code 12940 LAB.
- Serri v. Santa Clara University, 226 Cal.App.4th 830 (2014).