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Defining "Abusive Conduct" Under California Law: A Simple Breakdown

Discrimination, harassment, and abusive conduct are unacceptable and unlawful in the American workplace. In the US, there exist both federal and state laws protecting employees from experiencing undue distress from inappropriate, hurtful, humiliating, and targeted abusive behaviors by coworkers, supervisors, bosses, and even customers on the company's premises. 

Staying updated with compliance requirements keeps employers from visiting unenviable costs in human resources and legal fees upon their companies. If an employer does not invest thought and effort into the prevention of abusive conduct/harassment within their workforce, they run a very high risk of fostering a problematic work environment that will, sooner or later, turn into a legal problem.

Read on to learn more about: 


What Constitutes "Abusive Conduct" In The State Of California?

Being able to identify problematic behavior at the workplace can be tricky, and the term "abusive conduct" is rather nebulous -- so, how does an employee know whether or not what they are experiencing at work actually violates the California employment law?

Legal Definition Of "Abusive Conduct"

In California, under the latest Senate Bill No. 778, "abusive conduct" is defined as: "conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer's legitimate business interests. Abusive conduct may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person's work performance. A single act shall not constitute 'abusive conduct', unless especially severe and egregious".

"Abusive conduct" in the workplace is, essentially, workplace bullying that happens pervasively enough to start causing distress to one or more employees, so much so that it would get in their way of performing their job(s). Differences in opinion or interpersonal conflicts do not necessarily constitute abusive conduct without the pervasively malicious, hostile, threatening, inappropriate, or discriminatory intent or actions.

Hostile Workplace Environment

Abusive conduct is one of several types of harassment that can contribute to a "hostile workplace environment" which, in turn, fits into the larger legal rubric of "workplace discrimination" that is unlawful on both, federal and state levels.

For abusive behavior to qualify for causing a "Hostile Work Environment", it should satisfy both of the following criteria:

  • The conduct is targeting a victim on the basis of a "protected class" trait(s) such as gender, sexual orientation, race, marital status, etc. 
  • The bullying/harassing behavior is "severe or pervasive". 
There are, however, a couple of exceptions to the above conditions. The inappropriate conduct need not be discriminatory in a targeted way if the victim experiences sexual harassment or an actual threat to their personal safety (physical and sexual assault included).

What Constitutes "Conduct That A Reasonable Person Would Find Hostile, Offensive, And Unrelated To An Employer's Legitimate Business Interests"?

Instances of abusive conduct and other unlawful harassment are assessed from what is known as the "reasonable person standard". When an employee lodges a harassment complaint with HR, the employer appoints an internal or hires an external evaluator to investigate the filed harassment claim. This evaluator, in trying to be as objective as possible, just imagine the scenario from the perspective of an "average" person who might find themselves in the situation described by the victim. The "reasonable person" is not someone who over-or under-reacts to social situations and whose perceptions and interpretations of it are expected to be representative of a "normal" way to feel under the circumstances.

The "reasonable person" heuristic does not, however, exclude the consideration of the victim's "protected status" on the basis of which they were abused. If, for example, the employee reports being singled out for homophobic abuse, the evaluator must consider what such experience would feel like specifically from the perspective of an employee of LGBTQ sexual orientation, for whom the abusive experience may be compounded by many others negative ones of the same nature.

Other examples of acts of abuse/malice that a "reasonable" person would find intolerable at the workplace include (but are not limited to):

  • Repeated use of derogatory remarks, such as female employees being called "honey" and "sweetie" by a male coworker (indeed, words that would be considered "terms on endearment" in intimate interpersonal relationships can be legally considered "verbal abuse" in the workplace setting.)
  • Regular/frequent jokes mocking a person's religious beliefs, gender, sexual preferences, national origins, etc.
  • "Messing" with an employee's personal property or work equipment without their consent
  • Uninvited/unwarranted physical contact
  • Deliberately excluding/isolating a particular employee from normal work activities 

The Latest Compliance Requirements In California

In staying compliant with discrimination/harassment in the workplace, California employers are subject to regulations from both, federal and state laws.

What Agencies Enforce Employment Law in California?

Federal

On the federal level, anything that falls under the category of "workplace discrimination" is overseen by the U.S. Equal Employment Opportunity Commission (EEOC), in accordance with Title VII of the Civil Rights Act of 1964. 

For US employers, being EEOC-compliant has to do with specified ways of record-keeping, ensuring that all employees are aware of their workplace discrimination rights by accessibly posting the required notices, developing an internal complaint-lodging process, as well as submitting EEO Reports on an annual basis (for qualifying employers or state contractors).

State

On the state level, regulating unlawful workplace bullying/harassment is the province of the California Department of Fair Employment and Housing (DFEH) which enforces "workplace discrimination" laws under the Fair Employment and Housing Act of 1959 (FEHA).

Under FEHA, California employers are legally responsible for the following compliance tasks:

  • Providing all employees with a DFEH-developed poster/fact sheet regarding sexual harassment -- or equivalent information
  • Providing employees with sexual harassment and abusive conduct prevention training every two years
  • Retaining a record of every employee's training for at least two years

The latest amendments to the law mandate that, by January 1, 2021, California employers with five or more employees must deliver: 

  • A minimum of two hours of classroom or online interactive training on the topic of workplace sexual harassment to all supervisory employees (new supervisory employees must receive training within six months of assuming the supervisory post)
  • A minimum of one hour of sexual harassment education to all non-supervisory personnel (new non-supervisory employees must be trained within six months of hire)

The training provided by the employer must include "information and practical guidance" regarding the prohibition against / prevention of sexual harassment as well as the legal recourse and remedies available to victims of mistreatment. 

It should be noted that, while "abusive conduct" at the workplace must be couched within a larger legal context of workplace harassment or discrimination to be unlawful, prevention of abusive conduct is now a required component of sexual harassment training for employees in supervisory positions in California, thanks to an earlier amendment (AB 2053) to FEHA, effective January 1, 2015. This training should be administered by "trainers or educators with knowledge and expertise in the prevention of harassment, discrimination, and retaliation" and needs to come with practical examples/illustrations of how sexual harassment and other bullying manifest in the workplace.

Sexual Harassment Prevention Training Is Mandatory In California

Not only is sexual harassment prevention training required in the state of California, but it is also one of the only approaches that help with the actual prevention of sexual harassment at work. Therefore, it is something California employers should commit to for the sake of their employees' well-being as well as their companies' legal and financial health and public reputations.

While the California Department of Fair Employment offers their own basic free training courses on the prevention of harassment, discrimination, successful companies, and their employees deserve interactive training that is designed with the e-learning industry's latest standards and best practices in mind. The trainees ought to do more than simply satisfy the bare minimum requirements by going through the motions of "prevention of harassment training": they must achieve a real understanding of this problematic phenomenon and wholeheartedly commit to keeping it at bay. 

What good is training if it has no staying power? Enter EasyLlama's Sexual Harassment Training: it is easy to administer for the employer, simple (and fun!) to use for employees and is compliant with all California state requirements, including abusive conduct training mandated under the Government Code section 12950.1, subdivision (g)(2). With no-brainer pricing plans for every company and budget size, make your -- and your employees' -- life easier and try it out!