November 15, 2019 Category: Hostile Work Environment
As a worker in California, you have a right to a workplace that is free from harassing and abusive actions. However, not all harassment or abusive behavior breaks the law. It is important to know the difference. Harassment claims usually involve supervisors and co-workers, but they can also include contractors or customers. One of the main types of harassment recognized by California law is a hostile work environment.
Hostile Work Environment Defined
A hostile work environment is defined under California’s Fair Employment and Housing Act. It is inappropriate severe or pervasive harassment that creates an offensive or abusive work environment for one or more employees.
There are two main elements that are generally needed to be successful with a hostile work environment claim.
1) Is the harassment severe or pervasive?
This is usually shown by proving that the actions were repetitive or occurred repeatedly over the course of several weeks. It can also include threats to a victim concerning their personal safety. It would not include occasional or isolated incidents. It is not enough if a co-worker made a few snide remarks from time-to-time.
2) Is the behavior a targeted form of discrimination?
Several traits are protected from harassment and discrimination. A hostile work environment exists if the severe and pervasive behavior targets one of these traits. In California, the following are protected characteristics:
- Sexual orientation
- National origin
- Medical status
- Genetic information, and
- Military status.
Even if the two above factors are met, there must be an actual offended victim. Usually, the victim will also need to show that the behavior affected their ability to perform the job or that it damaged their well-being.
If the target of the harassment invited the behavior or demonstrated that they were not offended, it is more than likely not a hostile work environment. This is a common defense for the offender when a claim is made against them.
What If There’s No Targeted Discrimination?
Unfortunately, there are not as many protections for workers if there is a severe or pervasive harassing behavior that is not a targeted form of discrimination. There are a few options for employees who find themselves in this situation and would still like to understand what they can do to make the behavior stop.
1) Threat to the employee’s personal safety
This form of behavior is always prohibited. If there was a threat to personal safety, it does not matter if the behavior was targeted to a certain characteristic. This is also true if there was an actual assault or physical altercation like a fight or a rape.
2) Sexual harassment
If sexual harassment is involved, there does not need to be a targeted form of discrimination. A co-worker could be sexually harassing both male and female colleagues. They could also be randomly harassing employees of different ages or races. If the harassment is sexual in nature and severe or pervasive, it would constitute a hostile work environment.
3) Perceived characteristics
California also protects against perceived characteristics, even if the victim does not belong to the suspected class. This means that if the abuser thinks that the victim belongs to a certain class, even if they don’t, discriminating behavior against that trait will still be considered a hostile work environment. These cases are usually seen when race or sexual orientation are involved.
4) Getting legal advice
An individual may not be able to determine if they were victims of targeted discrimination. It may take a legal expert to see a pattern of hostility or identify targeted discrimination. If there is no targeted discrimination, a legal expert can also help you look at other options such as claiming an unsafe work environment or even a possible breach of contract.
The Next Steps
The first step is to file a complaint within the company. Make a record of this and of all the instances of harassment. Do not secretly record the offender. In California, it is not legal to record someone without their consent. It is important to note that the company cannot fire you for filing a complaint. This is called retaliation and it is illegal.
If the company does nothing or you are not satisfied with the result, you can sue them. Historically, California had restrictive laws that allowed for companies to force arbitration for harassment claims. Recently, Governor Newsom outlawed this practice and made it easier for victims to sue the harassers.