Hostile Work Environment
Work is an important part of everyday life. It shouldn’t be scary, abusive, or intimidating. If it has then you need to educate yourself. If you’re being harassed to the point of fearing going to work, you may be working in a hostile work environment. But what is that? If someone is being mean to you at work, does that mean the law is being broken? Not necessarily. This page will unpack and answer all the questions someone might have regarding CA’s hostile work environment laws.
- California’s legal definition
- Types of conduct that may result in hostile environment
- Some HWE examples
- What to do if you’re a victim
- How your employer should address the harassment
California HWE Law & Definition
The law say that petty annoyances do not make the cut as illegal harassment. Usually, isolated incidents aren’t considered illegal harassment either, unless it is extremely serious. In order for the work environment to be unlawful, the conduct must have created an environment that was abusive. More importantly, the bad behavior must have been motivated by a legally protected characteristic or class.
The protected classes in California are:
- Sex (we cover sexual harassment here)
- Age, if the employee is over 40-years old
- Physical disability
- Sexual orientation
- Mental disability
- Gender identity/ gender expression
- Marital status
- Medical condition
- Military or Veteran status
- National Origin
- Genetic information
What is the difference between harassment and a hostile work environment? Well, that’s simple – they are basically the same thing. We’ve created a general harassment page that covers many of these same principles here.
While CA’s laws on point come from the Government Code/DFEH, the federal government has also passed anti-harassment laws. The EEOC established that the meaning of the phrase hostile work environment is caused by harassment that a reasonable person views as hostile, intimidating, or offensive. There is a keyword here – “reasonable” person. This word is fairly subjective, but that helps eliminate those that have unreasonable fear of others’ non-threatening actions towards them.
Types of Conduct that May Result in Hostile Environment
There are many things that a co-worker, supervisor, or employer can do that would constitute it being harassment and creating a hostile work environment. All of these likely fall into 3 categories: sexual harassment, offensive conduct, or racial/ethnic discrimination harassment.
Sexual Harassment – When an employee is being sexually harassed, it can create a very uncomfortable environment. This is caused by an employer, supervisor, or co-worker who says or does things that make the victim feel extremely uncomfortable. Sexual harassment may be something other than requesting sexual favors, such as the showing of inappropriate photos or speaking vulgar things to the victim. We cover sexual harassment in extensive detail on this page.
Offensive Conduct Due to Protected Characteristic – Offensive conduct in the office can cause someone to feel uneasy. If its done because of someone’s age, disability, religion, or some other protected characteristic, it is illegal. The victim of this harassment does not necessarily need to be the recipient of the offensive action. The victim can be a third person who witnesses this offensive conduct. Offensive conduct can include: jokes, gestures, unwanted touching, leering, pictures, and more.
Race, National Origin, or Ethnic Harassment – harassment brought on by race, ethnicity, nationality, is one of the more common forms of harassment. The use of repulsive and derogatory terms, ethnic or racial slurs could be make a enormous emotional or mental impact – destroying work performance and morale.
Hostile Work Environment Examples
A hostile work environment must come from illegal discrimination or harassment. Below are some hostile work environment examples broken down by types of harassment:
Examples of offensive conduct or comments
- Constant jokes about age may be offensive to an older employee (“Old people are slow, we need young people in here”)
- A group of employees ganging up on another employee because of his/her religion (“You should never trust a Jew”)
- Offensive racial slurs (“nigger, weddo, wet-back, chink…”)
- Mocking a disabled employee (“I’m going to call him “wheels” cause he’s in that wheelchair”)
- Cartoons or comics shared that joke about someone’s race (“Asians are good at math but they suck at marketing”)
- Constant jokes about an employee’s national origin (“Afghani’s are all terrorists”)
- Not letting the gay or lesbian workers meet with customers or managers (“Our customers are not interested in having a gay sales rep”)
- Use of racial epithets in the workplace Aguilar v. Avis Rent a Car System, Inc
Sexual harassment examples
- Catcalling a male or female employee
- One employee continually asks another employee out on a date even after he/she has already said “no” many times before
- A superior requests an employee for sexual favors in exchange for getting vacation time off or other workplace benefits
- Making unwanted gestures towards another employee Fisher v. San Pedro Peninsula Hospital
The list goes on and on….
What Should You Do if You’re a Victim of a HWE?
You should report it in writing to the company. This written complaint demonstrates that you find the behavior to be offensive and it is unwelcome. This is an essential element in prevailing in a harassment case. This is also especially important if a co-worker is the one doing the bad behavior (as opposed to a manager), because you need to show that the employer knew or should have know the harassment was occurring. We’ve posted an entire blog post (and video) about how to complain at work.
If your employer has a harassment policy in place, review it. If it outlines a procedure for reporting harassment, follow it.
Don’t quit your job unless absolutely necessary. Often times, people will become a victim and quit their job before even letting their employer know that the harassment is taking place. This makes is more difficult to win your case because it is harder to show that the employer knew that the harassment was taking place. Quitting also eliminates your ability to win economic damages (lost wages) and that makes it much harder to find a lawyer to take your case.
How Employers Should Deal with a Hostile Work Environment
Your employer has the responsibility of taking action as soon as any harassment comes to their attention. If they don’t, you can also sue them for failing to prevent harassment.
Once on notice, the employer should conduct a fair and unbiased investigation, discipline the harasser, moving the harasser to a different position or department, or terminate the harasser’s employment. The employer is required to create and maintain a safe work environment for its employees.
It’s also illegal for the employer to retaliate when an employee reports the harassment. If you complained about a HWE, and your employer is making working conditions worse for you, call a lawyer for a consultation before you quit.
If you are unsure of how to report the harassment to your employer, call our office to see if we can assist you with that as well. You don’t have to put up with a hostile work environment anymore, call us today and put a stop to it.