In the California workplace, a hostile work environment is defined as offensive or discriminatory behavior that prevents you from comfortably carrying out your job duties. Some common examples include sexual harassment, bullying, threats, physical altercations, or racial slurs.
Here are five key things to know:
- Hostile work environment harassment is prohibited under the Fair Employment and Housing Act.
- This harassment is often sexual- or gender-based, but it can be based on non-sexual characteristics.
- The harassment can be committed by non-supervisors as well as by supervisors.
- Hostile work environment harassment is distinct from workplace discrimination, but the two often go hand-in-hand.1
- Another other type of workplace harassment is “quid pro quo” sexual harassment. 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:
- The behavior involves or is because of a protected trait (such as gender, race, age, etc.); and
- The behavior is either pervasive or 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 your physical safety or well-being.
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?
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
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 document 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;
- 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.
What should I do if I am in a hostile work environment?
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.
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, while quid pro quo sexual harassment involves explicit or implied demands for sexual activity in exchange for employment benefits or opportunities.
|Hostile Work Environment
|Quid Pro Quo Sexual Harassment
|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.
|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.
|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.
|A supervisor demanding sexual favors from you in exchange for a promotion or job security.
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.
- 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.
- 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 also Department of Health Services v. Superior Court (2001) 94 Cal. App. 4th 14.
- California Assembly Bill 9 (2019). California Government Code 12960. See also Alexander v. Community Hospital of Long Beach (; Brome v. Dept. of the California Highway Patrol (.
- Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 869-70.