Every employee, no matter their employer, the position they are in, or the level they are at in their career, is entitled to a safe and non-hostile work environment. If a work environment becomes hostile, that employee is entitled to pursue legal action.
But, you may wonder, what does and does not constitute “hostile”?
Defining a “Hostile Work Environment”
Under California’s Fair Employment and Housing Act, an environment becomes hostile when it consists of inappropriate behavior that is either severe or pervasive enough to create an abusive work atmosphere for one or more employees.
Hostile behaviors can be gender-based or sexual in nature, but can also consist of non-sexual harassment, such as bullying or religious harassment.
Hostile behaviors can be committed by supervisors and non-supervisors alike, as well as non-employees, such as independent contractors and even customers and clients. That said, it is the job of the employer to put a stop to workplace hostility and ensure that each employee enjoys a safe and comfortable space when they come to work.
Parties Responsible for Hostile Work Environments
It is the employer’s responsibility to put a stop to workplace hostility and ensure that each employee enjoys a safe and comfortable space when they come to work.
Employees are protected by California law from hostile workplace harassment. The law also protects others who are not employees from harassment, including:
- Unpaid interns,
- Job applicants, and
- Independent contractors. (Cal. Code Reg. § 11019)
Who is held responsible when employees or others protected under California law are subjected to hostile work environment harassment?
First, employers can be held liable for hostile work environments created by their own employees. If the employee who engaged in the harassing conduct was a supervisor, the employer can be held strictly liable for the hostile work environment.
Employers can also be held responsible when an employee who is not a supervisor created a hostile work environment. When the employee is not a supervisor, the employer is responsible if it “knew or should have known of the conduct and failed to take immediate and appropriate corrective action.” (California Civil Jury Instructions No. 2521a).
Additionally, the employer might be responsible for hostile work environments created by nonemployees. An employer can be held responsible for the conduct of a person who is not an employee when:
- The employer knew or should have known that the nonemployee’s conduct placed employees at risk of harassment;
- The employer failed to take immediate and appropriate preventative or corrective action; and
- The ability to take such action was within the employer’s control. (Cal. Gov. Code § 12940(j); California Civil Jury Instructions No. 2528)
The employee might have a more difficult time suing an employer when a nonemployee’s conduct caused the hostile work environment under this standard.
Second, the individual who participated in, assisted, or encouraged the harassing conduct might be held responsible to the employee for a hostile work environment.
Conduct That Makes a Work Environment Hostile
California hostile work environment laws grant employees certain privileges of employment, or in other words, rights as an employee. These laws protect employees from unlawful harassment.
There are two types of harassment that employees have a right to be free from in the workplace: quid pro quo harassment and hostile work environment harassment.
Harassment is defined broadly to include a variety of inappropriate conduct. California law states that “harassment” can be:
- Verbal (e.g., epithets, derogatory comments, or slurs);
- Physical (e.g., assault or interference with the work or movement of a person);
- Visual (e.g., derogatory posters, cartoons, or drawings); or
- Sexual (e.g., conditioning a benefit of employment on the exchange of sexual favors).
California makes sexual harassment illegal, but the harassment involved in a hostile work environment claim need not be sexual in nature.
Examples of Hostile Work Environments
Workplace hostility can take many forms, but there are some more common scenarios that our employees’ rights attorneys are privy to. Some such instances include:
- Your employer or coworker communicates with you using offensive jokes or racial slurs;
- Your employer or coworker demonstrates verbal aggression or anger toward you in the form of yelling, cursing, or other similar means;
- Your employer or coworker exhibits non-verbal aggression or anger toward you (such as slamming work onto your desk in an aggressive manner);
- Your employer or coworker belittles you because of your personal circumstances, ideas, opinions, or work;
- Your employer or coworker messes with your personal belongings;
- Your employer uses unfair tactics to prevent you from advancing within the organization;
- Your employer or coworker stalks you, pesters you, or spies on you; or
- Your employer or coworkers threaten you with termination, physical, emotional, or psychological abuse, or unwarranted punishment if you do not do something that is not within your scope of duties.
Again, workplace hostility can take many different forms, so if you believe that you are a victim of it, it is important that you talk to an attorney right away. A skilled lawyer knows all the signs to look for of a hostile work environment and can help you build your case even when you yourself are unsure if you even have one.
One sure sign of workplace hostility is that the same aggressive or unwanted behaviors continue over time. They are pervasive enough to interfere with your work life and home life, and despite the fact that you brought the issue to HR’s attention, nothing has been done to stop it.
When Bullying Becomes Work Environment Harassment
Bullying does not just occur in schools. In fact, according to statistics published in Forbes, 75 percent of adults are the victims of workplace bullying. Not all forms of workplace bullying are worthy of a work environment harassment lawsuit. In order to qualify for a lawsuit, the workplace bullying must meet the following requirements:
- The behavior involves or stems from the fact that you exhibit one or more protected traits (gender, race, age, etc.); and
- The behavior is either severe or pervasive (it does not have to be both).
Under California’s hostile work environment harassment law, a protected trait is any one of the following:
- National origin;
- Marital status;
- Physical or mental disability;
- Medical condition or genetic information;
- Gender identity;
- Sexual orientation; and
- Military/veteran status.
California law prohibits workplace harassment that is based on or because of the employee has one or more of these protected traits.
Other Types of Behavior That May Be Construed as Hostile
Bullying is not the only type of behavior that can create a hostile work environment. Some other types of behavior that are capable of creating a hostile workplace include:
- Offensive jokes;
- Epithets or name calling;
- Physical threats or assaults;
- Offensive objects or pictures; and
- Interference with work performance.
Again, these actions must be ongoing or severe. One instance in which a coworker insults you is not enough to bring a hostile work environment claim, nor is one incident of unwanted physical interaction. However, if an incident leaves you fearful about going to work, makes you nervous when interacting with a particular person, or is severe enough to have affected you physically or emotionally, you may have a case.
What to Do if You Are the Victim of a Hostile Work Environment
If you are the victim of a hostile work environment, seek assistance from an experienced employment law attorney as soon as possible. There are several key reasons to obtain legal representation.
Protect Your Rights
A lawyer can defend your rights at every stage of your claim.
For example, an employer might attempt to dissuade you from pursuing a claim if you signed a “release of claim or right” in exchange for a raise or bonus.
The employer may also demand that you sign such an agreement as a condition of continuing your employment.
What the employer may not tell you is that these agreements are unenforceable under California hostile work environment law.
A lawyer will ensure that you are not further victimized by being coerced into not pursuing your valid claim.
Hostile work environment law, whether California or federal, sets strict filing deadlines that are easily overlooked by those who are inexperienced with employment law. If these deadlines pass, you could be prevented from bringing your hostile work environment harassment claim.
A lawyer will manage your case so that you submit the proper documents and evidence with the correct authorities and at the appropriate time.
As a victim of workplace harassment, you may be entitled to money damages. Certain damages, called compensatory damages, include:
- Past and future lost wages,
- Pain and suffering,
- Mental distress and anguish, and
- Injury to your reputation.
In addition, you could pursue punitive damages. Punitive damages are meant to punish and deter such egregious conduct.
If you succeed in your claim, you will also be entitled to payment of reasonable attorney’s fees and court costs.