What exactly is an illegal hostile work environment?

At some point in your career, you are going to encounter an uncomfortable situation at work, perhaps to the point you feel you are being harassed. But at what point does such a situation elevate to the legal definition of hostile work environment (HWE) harassment? And if you feel you are being harassed, what can you do about it?

In the state of California, employees have numerous protections against HWE harassment. And the protections are not limited to conduct committed by a supervisor. Anyone in the workplace can commit such harassment, and anyone in the workplace can become a victim of it.

In this guide we will cover every aspect of HWE harassment in California, from the legal definition and knowing if you’ve been a victim, to examples of harassment and what you can do if you feel you are a victim.

I. What is Hostile Work Environment Harassment?

Simply put, HWE harassment is a form of bullying, but to a more severe degree. While nobody enjoys being bullied, not all bullying is illegal. For conduct to reach the legal definition of HWE harassment, certain elements must be met.

• The behavior is based upon or involves one of the protected classes, as established in the California Fair Housing and Employment Act (FHEA).

AND

• The behavior is severe or pervasive, and to the point that the behavior disrupts the employee’s work or ability to work.

Additionally, for the behavior to be considered HWE harassment, it would fall outside the job description of the person committing the harassment.

Protected Classes under the FHEA

Under the FHEA, a California employer cannot discriminate against an employee based on, or harass on the basis of, the following:

• Race or color
• Ancestry or national origin
• Religion or creed
• Age (over 40)
• Disability, both mental and physical
• Sex or gender (including pregnancy, childbirth, breastfeeding or related medical conditions)
• Gender identity or gender expression
• Sexual orientation
• Medical condition
• Genetic information
• Marital status
• Military or veteran status

What constitutes “severe or pervasive”?

A one-time, even off-color, comment would generally not on its own be considered HWE harassment. Instead, other conditions would have to be considered order for conduct to be severe or pervasive enough to be considered HWE harassment. Whether a HWE exists is based on the “totality of the circumstances.” Some of these circumstances include:

• The nature of the conduct
• If the conduct is motivated by animus based on at least one of the protected classifications
• How often, and over what period of time, the conduct occurred
• The circumstances under which the conduct occurred
• Whether the conduct was physically threatening or humiliating
• The extent to which the conduct unreasonably interfered with an employee’s work performance

Now, thanks to the #MeToo movement, California allows that more circumstances can constitute HWE harassment, even though under prior law it may not have always risen to the level of severe or pervasive. The Legislature now acknowledges that “A single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment if the harassing conduct has unreasonably interfered with the plaintiff’s work performance or created an intimidating, hostile, or offensive working environment.”

Who commits HWE harassment?

In most instances anyone in the workplace can be liable for committing such discrimination, and anyone in the workplace can be a victim. This includes:

• Full-time employees
• Part-time employees
• Contractors / consultants
• Interns
• Clients / customers

The primary exception to this is quid pro quo sexual harassment, which typically needs to be committed by someone in a supervisory role. Quid pro quo sexual harassment means making an aspect of employment contingent upon the fulfillment of a sexual favor or favors. Examples of such aspects of employment include:

• Promotion / demotion (should the victim reject the sexual advance)
• Increase / cut in pay (should the victim reject the sexual advance)
• Termination
• Threat to job security
• Transfer to another department / location

II. When conduct creates a Hostile Work Environment Harassment … and when it doesn’t

So we know the elements needed for conduct to reach the level of harassment, but what types of conduct don’t reach the level of HWE harassment?

When conduct is not HWE harassment

On their own, behavior such as the following do not demonstrate HWE harassment:

• Cursing
• Yelling
• Name-calling (e.g., stupid, dumb, idiot)
• Belittling someone with words
• Talking in an demeaning manner or tone / saying demeaning things

Since part of the standard for HWE harassment is the conduct must be pervasive or severe, conduct that happens at the following rates may not always meet that threshold:

• Occasional
• Isolated
• Sporadic
• Trivial

But, this standard is based on the totality of the circumstances, and now in California even a “stray remark” could be considered HWE harassment.

Bottom line: Sometimes a plain bully can get away with bad behavior at work.

When the above conduct becomes HWE harassment

Abusive language can be HWE harassment if it is motivated by animus based on at least one of the protected classifications. The most important part of a HWE harassment analysis is that the harassment cannot be based on the victim being in a protected class. Bullying someone for any reason other than protected characteristics is not illegal.

When conduct becomes extreme and outrageous, and causes an employee emotional distress, it can give rise to a claim against that individual for inflicting the emotional distress to the point of liability for negligence or intentional inflicting of emotional distress.

III. Examples of conduct that meets the HWE harassment threshold

It bears repeating: anyone in the workplace can commit unlawful harassment, and anyone in the workplace can become a victim of it. This can include:

• Unwanted sexual advances / touching
• Using sexually suggestive language or describing sex acts
• Using racist language / displaying racist images
• Telling offensive jokes about protected class(es) of people

IV. What to do when you have been subjected to HWE harassment

The United States Equal Employment Opportunity Commission (EEOC) encourages employees “to inform the harasser directly that the conduct is unwelcome and must stop.” From there, “employees should also report harassment to management at an early stage to prevent its escalation,” per EEOC guidance.

The procedures for reporting abusive behavior vary by employer, but they would typically include:

• Complain to your direct supervisor
• Complain to human resources

A best practice is to complain in writing, rather than only in person. The employee should document the incident(s) of harassment to the best of their ability.

It may also be necessary to file a formal written complaint through the employer’s complaint process.

It is critical that the employee follow harassment-reporting protocols established by the employer. Should the complaint be taken up outside the workplace, like the EEOC or the California Department of Fair Employment and Housing (DFEH), whether the employee properly followed the employer’s protocols could be used in evaluating employer liability.

If following the proper protocols at work does not produce a desired remedy, the employee can seek outside assistance. These would include:

• Speaking to a lawyer to evaluate the claim
• Filing a complaint through the DFEH

V. Filing a complaint — can it get you fired?

This one has a simple answer, as well: No.

Both state and federal law protect an employee in California from being retaliated against for filing a complaint over HWE harassment. Among the actions that are protected from retaliation:

• Complaining to a government agency or regulator, or making rules prohibiting any such disclosures about violations of laws or regulations
• Complaining about unpaid wages or commissions
• Reporting or complaining about Sarbanes-Oxley violations, or any other state or federal law or regulation violation
• Complaining to OSHA, or Cal/OSHA, or any other organization regulating safety
• Complaining to a supervisor or coworker about issues regarding:
  • Safety
  • Wages
• Making a request for medical leave under the Family Medical Leave Act (FMLA) or California Family Rights Act (CFRA), or exercising rights under the FMLA or CFRA
• Requesting a reasonable accommodation under the Americans with Disabilities Act

For anyone in need of legal assistance, Litigation, P.C. can be contacted at (424) 284-2401, or at support@obagilaw.com.

This post is informational only and should not be understood as legal advice. This post does not create an attorney-client relationship.