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, etc.
Other 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.
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. 1 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 meets the legal definition of 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,
- 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 doesn’t qualify as HWE harassing if it is:
- sporadic, or
In practice, this means that behavior usually rises to the level of HWE harassing if it either occurs repeatedly or involves a threat to the victim’s physical safety or well-being. 7
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--independent contractors, clients, and customers, for example.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.
What is the difference between hostile work environment and 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 harassing 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 harassing.
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 a hostile work environment harassing. But if that same supervisor tended to give promotions and raises only to men, that would be employment discrimination.
Harassed in Nevada? See our article on HWE and employee rights in Nevada.
California Department of Fair Employment and Housing (DFEH) Workplace Poster Regarding Discrimination. See also our article on What behaviors are considered criteria for a hostile work environment?
- 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.”)
- Government Code 12940 GC — Employers, labor organizations, employment agencies and other persons; unlawful employment practice; exceptions [California workplace harassment law].
- 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.
- Government Code 12940 GC — Employers, labor organizations, employment agencies and other persons; unlawful employment practice; exceptions, endnote 3 above.
- Same. See also Department 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, 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 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.”)