Workplace Bullying in California – How You Can Fight Back

Workplace bullying is defined as repeated, degrading mistreatment at work. Examples of bullying include:

• use of verbal abuse and epithets,
• intimidating or humiliating behavior, including offensive jokes,
• interference with the victim’s work that is unrelated to the employer’s legitimate business interests, or
• cyberbullying

There is no specific anti-bullying law in California. But California employees have the right to sue the bully or their employer if the bullying becomes workplace harassment or discrimination under

• the California Fair Employment Act (FEHA),
• the Americans with Disabilities Act (ADA), or
• Title VII of the Civil Rights Act of 1964.¹

Workplace bullying may violate harassment or discrimination laws when such behavior is based on a protected category to which the victim belongs.

This means that workers have a legal right to take action either when bullying crosses the line into sexual harassment, or when it meets the legal definition of non-sexual harassment or discrimination on the basis of protected characteristics like:

• Race,
• Religion,
• National origin,
• Sexual orientation, or
• Disability.²

Below, our California labor and employment attorneys answer the following frequently asked questions about the rights of employees who suffer workplace bullying:

• 1. What is workplace bullying?
• 2. Is workplace bullying illegal in California?
• 3. Is bullying a form of harassment?
• 4. What are my rights if I experience bullying at work?
• Additional Resources

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1. What is workplace bullying?

The Workplace Bullying Institute (WBI) defines workplace bullying as repeated, health-harming mistreatment of one or more people in the workplace. Workplace bullying behavior is abusive conduct that falls into one of the following three categories:

1. Threatening, humiliating, or intimidating workplace behavior;
2. Work interference / sabotage of the person’s work performance; or
3. Verbal abuse.

Example: Ramona accepts a new job at a small company. She is replacing another worker who was fired for absenteeism.

Several other employees of the company were good friends of the worker who was fired and resent Ramona for being her replacement. They repeatedly sabotage her work by sneaking onto shared documents on the company’s internal network that Ramona has been working on and deleting her work.

This counts as an abusive work environment, of the sabotage/work interference variety.

Usually, a single act is not considered to count as workplace bullying; instead, the abuse must be repeated. An exception is a single act of bullying that is particularly severe or harsh, such as a physical attack or plausible threat to the victim’s personal safety.³

2. Is workplace bullying illegal in California?

Workplace bullying is NOT actually illegal in California – although certain forms of abusive conduct can be illegal under California law. There is no California statute allowing employees to sue their employers and/or coworkers over cases of bullying at work.⁴

However, a 2014 California law called AB 2053 does require California employers with 50 or more employees to provide two hours of sexual harassment training to supervisory employees every two years that includes training on prevention of “abusive conduct” (meaning workplace bullying).⁵

Also, employees who are victims of workplace bullying may have a legal right to compensation if the bullying crosses the line into workplace harassment. We describe this scenario in the next section.

Workplace bullying on the basis of race or sex may rise to the level of illegal workplace harassment.

3. Is bullying a form of harassment?

Simply put, “hostile work environment” harassment is workplace bullying that is based on one of the protected categories covered under California’s Fair Employment and Housing Act (the “FEHA”).

California employees have a legal right to be free from workplace harassing behavior on the basis of any of the following protected classes:

• 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.⁶

Unlike workplace bullying, harassment on the basis of one of those categories is against California employment law.

Example: Ahmed is the only Muslim and immigrant employee at an auto repair shop. Several of his colleagues regularly make rude, disparaging comments to his face in front of others about his appearance and not being American and ability to do his job. He is also excluded from his colleagues’ social activities. On several occasions the harassers have used ethnic slurs in person and on social media.

The workplace bullying Ahmed is experiencing may actually be hostile work environment harassment on the basis of his religion and nationality.

Harassment itself can take many forms, including verbal (such as threats), physical (such as unwanted touching), sexual (such as unwanted sexual advances), and visual (such as offensive posters).⁷ And for harassment to rise to the level of a hostile work environment, the bullying must be severe and pervasive. Courts consider such factors as:

• The nature of the conduct;
• How long and how often the harassing conduct lasts;
• The circumstances surrounding the conduct;
• If the conduct was humiliating or threatening.⁸

And in certain situations, even a one-time incident of bullying can qualify as workplace harassment.⁹

Victims of harassment have the right to file complaints with the California Civil Rights Department (the “CRD”) and, in many cases, to file a lawsuit in response to the bullying and harassment. They can sue the person who harasses them. They can also sue their employer if the harassment is committed by a supervisor or if the employer handles the unlawful harassment negligently.¹⁰

4. What are my rights if I experience bullying at work?

Even though workplace bullying is not against the law in California, employees who are the victims of bullying at work DO have options. An experienced California labor and employment attorney can help you determine whether the abuse you are experiencing violates California employment law. Sometimes, the problem can be solved by going to Human Resources. Other times, legal action is necessary.

For example, the bullying you are experiencing may actually meet the legal definition of harassment. California harassment law is broader than many people realize and encompasses abusive behavior not just on the basis of categories like race and sex–but also on the basis of less well-known protected traits like a medical condition, military status, age, and gender expression.

If your complaints about bullying lead to your job loss, you may have rights under California “wrongful termination” or FEHA retaliation laws. If the bullying you experience includes wage/hour or overtime violations, you have legal rights regarding those as well.

Finally, speaking with an attorney can be helpful even if the workplace bullying you experience does not activate any specific legal rights given to California employees. Sometimes, the knowledge that you are exploring your legal options is all an employer needs to start paying attention to workplace bullying and its terrible effect on employee morale (as well as potentially on their bottom line).

Additional Resources

For more information, refer to the following:

1. Workplace Bullying Institute – Leading organization dedicated to enacting laws against workplace bullying.
2. Workplace Harassment Legislative Principles and Priorities – The ACLU’s call for legislative action to end workplace harassment.
3. EEOC Harassment Information – Harassment overview and resources from the U.S. Equal Employment Opportunity Commission.
4. Workplace Bullying Is Not Employee Dissatisfaction and Is Different from School Bullying – Article in Workplace Psychology blog.
   
5. Right to Be – Nonprofit movement to end harassment in all spaces, including work.

Legal References: