“Hostile Work Environment” Harassment in California

In California, a hostile work environment is defined as inappropriate behavior in the workplace that is either severe or pervasive enough to create an abusive work atmosphere for one or more employees. This form of workplace harassment is prohibited under the Fair Employment and Housing Act.

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, or
• other actual or perceived protected characteristics.

Important things to know about hostile work environment (“HWE”) harassment are:

• HWE harassment 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 harassed employee 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:

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 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),
• Gender (being 40 or older),
• Gender identity or gender expression,
• Age,
• 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:

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

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?

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

• contractors,
• clients, and
• customers.⁹

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 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.

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 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 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. 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.

If going to HR 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.

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

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.

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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