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What Employers Need To Know About A Hostile Work Environment: California Edition

No company in California can afford to allow a hostile work environment to manifest in any form. Fostering a hostile work environment in any of its definitions is against state and federal law.  Allowing a place of business to become toxic is unfair and distressing to the employees which, in turn, lowers job productivity which, in turn, negatively affects the company's bottom line.

The safest, most responsible, and least costly way to deal with a hostile work environment is to prevent a hostile work environment from happening in the first place. Prevention happens through anticipatory self-audits, company-wide staff compliance training, and keeping up and staying compliant with the latest developments in the legislature.

A good place for an employer to begin is to become familiar with what is meant by the legal term "hostile work environment".

If you need help with preventing a hostile work environment at your workplace, try EasyLlama's hostile work environment training for California. We help your team become aware of biases and discrimination so you can have a safe and efficient work environment.

What Constitutes A Hostile Work Environment In California?

Each US state has its own legislature and definition of "hostile work environment" as well as "employment discrimination" criteria. Employers should stay up-to-date on all state mandates (here is a guide on all state sexual harassment law requirements, courtesy of EasyLlama)

Hostile Work Environment Definition

In the state of California, a hostile work environment is legally defined as inappropriate conduct in the place of work that is either severe or pervasive enough to create an abusive work environment for at least one (or more) employees.  Allowing / not instantly putting an end to the occurrence of a hostile workplace is unlawful, as specified by the Fair Employment and Housing Act (FEHA), a California law passed in 1959 to combat sexual harassment and other types of unlawful discrimination in employment and housing. Read here to understand more of what is considered harassment in California.

A hostile work environment folds into the larger legal rubric of "employment discrimination" and is subject to the state and federal law/sanctions attached to that violation.

To get a more detailed breakdown, read up on our harassment training requirements for California article.

Workplace Harassment Definition

The misconduct that leads to creating a hostile work environment is referred to as "workplace harassment". Essentially, workplace harassment is co-worker bullying taken to a level that affects workplace morale for one or more employees and becomes so intolerable that it interferes with the employee(s)' ability to do their job. 

Hostile work harassment may be committed by any employee within a company, supervisor and non-supervisor alike, as well as anyone on the premises of the company, such as clients, job applicants, independent contractors, etc. 

Offensive conduct may take the form of sexual or gender-based inappropriate behavior (such as soliciting sexual favors or repeatedly vocalizing crude judgments of female employees' wardrobe) but it can also be non-sexual and directed at individuals on the basis of other social biases. The harassment can take the form of ostensible aggression but can also manifest in subtler forms such as jokes and pranks that are mean-spirited, alienating, and demeaning in nature.


Understanding And Proving "Hostile Work Environment" Legally

Harassing behavior meets the legal definition of hostile work harassment when it checks off both of the following criteria:

  1. The conduct references or happens in reaction to a "protected class" trait (gender, national origin, marital status, veteran status, genetic information, disability, etc.)
  2. The harassing behavior is either severe or pervasive.

What Makes Workplace Harassment "Severe" Or "Pervasive" Enough To Be Considered Unlawful Conduct?

To qualify for a hostile workplace legal action, hostile work environment harassment must be pervasive (inescapable) and severe (austere). As such, rare, sporadic, trivial, or isolated incidents do not legally qualify for a lawsuit. 

In court, improper conduct is viewed as rising to the level of "hostile workplace harassment" when it either takes place repeatedly or threatens the victim's physical well-being or safety.


Which Social Traits Targeted By Workplace Harassment Are In The "Protected Class"?

California law prohibits illegal discrimination and harassment of employees based on the following traits:

  • Race/skin color
  • National origin / ancestry
  • Religious affiliation / creed
  • Age (40+)
  • Disability, physical and mental
  • Sex/gender (including pregnancy, childbirth, breastfeeding, or related medical conditions pertaining to reproductive health, gender transitioning, etc.)
  • Sexual orientation
  • Gender identity / gender expression
  • Medical condition
  • Genetic information (DNA, family medical history, etc.)
  • Marital status
  • Military / veteran status

What If The Workplace Harassment Is Not Targeted At Any Particular Protected Class?

If severe and pervasive harassing conduct takes place without a targeted form of discrimination, employees are somewhat less protected, but still, have a case for legal action if their situation involves the following conditions:

A threat to the personal safety of the employee: This is an unlawful situation regardless of whether the behavior was motivated by any specific social bias. Instances of physical altercations and sexual assault are included in this set of illegal behaviors and are considered a hostile work environment in California.

Sexual harassment: Any time sexually inappropriate conduct is involved, it breaks federal and California laws all on its own. This type of offensive conduct at the workplace does not need to be a targeted form of discrimination: as long as it is severe or pervasive, it is considered a hostile work environment and is grounds for filing a hostile work environment claim. This is why sexual harassment training in California is mandatory

California law also protects employees singled out for harassment on the basis of perceived characteristics. For example, an employee may be a target of homophobic remarks without actually being homosexual;  Discriminating behavior against a protected class/trait, regardless of whether its target actually belongs to / identifies with that minority status, is still considered a hostile work environment. Calfornia offers free sexual harassment training online but we wouldn't recommend that if you want to save time and headaches. 

Applying The Reasonable Person Standard To Determining "Hostile Work Environment"

When it comes to investigators assessing whether a business has a legally defined abusive work environment, many types of behaviors seem to walk a fine line between "acceptable" and "inappropriate". In instances when one is trying to figure out if a specific action or conduct qualifies as a "hostile work environment", it is common to apply the reasonable person standard to bring some objectivity to the perspective.

Simply put, this method involves asking oneself if a reasonable individual in the described / similar scenario would find the conduct in question hostile, hurtful, humiliating, intimidating, or otherwise deeply uncomfortable; if an objective observer in the "same shoes" as the victim, so to speak, would experience the scenario in question as an abusive work environment that would interfere with their ability to perform their job.

The application of the reasonable person standard must include consideration from the perspective of an individual that is in the same social trait category as the victim. For example, if the victim is transgender, the "reasonable person" in this case is someone whose gender identity is frequently misunderstood, questioned, and attacked -- an experience that should be kept in mind when imagining which behaviors may be threatening, offensive, and humiliating to such an individual.

Alternatively, even if there appears to exist a rather objective, clear-cut hostile workplace situation, the subjective perception of the employee that appears to be harassed carries weight. Certain conduct may be questionable, but if the employee in the position to be offended does not experience any distress in response to that conduct, the behavior cannot be considered unlawful harassment. This underscores an important criterion in determining whether or not a behavior is an act of harassment: it has to be unwelcome

What Is The Difference Between Workplace Harassment And Workplace Discrimination?

While the FEHA prohibits both harassing conduct and discrimination at the workplace, it helps to understand the technical difference between the two categories of these prohibited occurrences.

Hostile work environment harassment is a case of someone in the workplace mistreating (hence "harassing") other employees on the basis of those employees' race, gender, sexual orientation, disability, national origin, religion, etc., in a manner that is outside of the harasser's job description. 

An example of hostile work environment harassing is a manager regularly making inappropriate jokes at the expense of female members of the team during meetings -- or a colleague routinely volunteering disparaging and degrading remarks about a particular generation at the water cooler. 

Workplace discrimination, on the other hand, is a case when a work superior treats their underlings unequally from each other on the basis of the "protected class" traits -- as part of performing their supervisory job duties

An example of workplace discrimination is when a supervisor disproportionately favors men over women for promotions and raises, or when the company only hires employees of the same religion as the boss. In this case, the higher-ups committing discrimination are not only being offensive and inappropriate, they are also performing poorly at their job.

Employee Rights In Reporting A Hostile Work Environment In California

Employees that have identified their situation as a hostile workplace in accordance with the above-mentioned criteria of pervasive or severe, targeted harassment, have the right to file a hostile work environment claim with the California Department of Fair Employment and Housing (DFEH).

It does not have to come to a lawsuit, however: if the employer takes immediate and appropriate action to rectify the situation by investigating, putting a stop to and taking measures to uphold employee rights and discourage future harassment at work, government investigation and subsequent legal action and costs may be avoided.

What Actions Can Be Taken If An Employee Is A Victim Of Hostile Work Environment In California?

The first step to take for an employee who believes themselves to be the victim of workplace harassment is to file a complaint with the business. Complainants should take care to keep records of everything pertaining to the case, though it should be noted that, in California, it is illegal to secretly audio or video record anyone without their consent.

If the employer fails to take immediate, satisfactory action, victims may file a discrimination complaint with DFEH. In employment cases, the employee has three years from the date they were harmed to file the claim. Before proceeding with filing the claim, the employee must obtain a Right-to-Sue notice from the California DFEH.

DFEH will independently investigate the case and attempt to resolve the situation through free dispute resolution services provided to the parties involved. 

If the claim is not resolved, DFEH will rely on the facts from the investigation to assess if a law has been violated.  From there, the case will either be considered dismissed/closed or, if there is reasonable cause to believe that a violation of the law has taken place, DFEH may proceed with a lawsuit. Before the suit is filed, however, both parties are usually required to attend mediation for one last chance to reach a mutually beneficial agreement before the case goes to court.


Employers' Obligations In Handling Complaints Of Hostile Work Environment In California.

In the state of California, the employer is legally required to take reasonable steps to prevent a hostile work environment as well as correct unlawful behavior at the place of work. 

It is unlawful for an employer to retaliate against an employee in any fashion for lodging an internal complaint or taking legal action against the hostile work environment they claim to have been subjected to.

The employer must act to eradicate the hostile work environment as soon as it is brought to their attention, with a special focus on ensuring the safety of the victim in the meanwhile.

Steps Employers Must Take As Soon As They Learn Of A Hostile Work Environment Complaint. 

A swift and thorough response to a harassment complaint is the California employers' best course of action to ameliorate the victim's distress and, subsequently, to shield themselves from liability in a potential lawsuit under the FEHA or, if liability is unavoidable, to limit economic damages. The steps for adequately responding to a hostile work environment complaint should progress along the following lines:

Attend thoroughly to the allegations of harassment.  Listening with patience and compassion validates the victim and encourages them to view the employer as an ally. 

It also allows the employer to gather the necessary details and context to see the bigger picture of what the allegations are based on, in order to properly and intelligently investigate the matter.

Take immediate action pending the upcoming inquiry. Preparing a well-executed formal investigation may take several days: in the meanwhile, the employer must ensure the protection of the victim from further potential abuse. 

Depending on the circumstances, it may involve changing work assignments or schedules to make sure that the victim and their harasser do not have to interact. In more extreme cases, the situation may call for placing the alleged harasser or their alleged victim on leave from the workplace.

Conduct an investigation of the harassment complaint.  The employer can appoint an internal investigator or hire a third-party neutral investigator(s) to conduct thorough interviews of the complainant, the alleged abuser, and any witnesses that may exist.

The investigators should not push for a direct confrontation between the accuser and the individual being accused of offensive conduct. All hostile work environment inquiry data must be kept confidential. 

Arrive at rational, good-faith conclusions about the complaint. As mentioned earlier, drawing a line on inappropriate workplace behavior can be a challenging task. 

The employer must address and investigate any allegations of harassment with utmost seriousness. However, at the same time, overreacting to a hostile work environment complaint can carry its own repercussions, such as a wrongful termination suit on behalf of the alleged harasser.

All things considered, employers are expected to do their due diligence in  investigating the hostile work environment claims in accordance with the following rules of thumb:

  • Investigate the allegations in reasonable ways (e.g. by adhering to the above-described reasonable person standard)
  • Draw rational conclusions 
  • Act in good faith (i.e. act honestly and with the earnest commitment to the cause) 

Make available the results of the investigation to both parties. Both the alleged victim and the alleged harasser must be informed (preferably in writing, for record-keeping) of the conclusions of the investigation into the hostile work environment complaint.

There are only two, mutually exclusive outcomes to such an inquiry:

  • The employer confirms that harassment took place
  • The employer is unable to confirm that harassment took place

There is no third option as it is typically not possible to determine with absolute certainty that harassment did not take place

Issue corresponding remedial measures. If the investigation conclusions acknowledged the existence of a hostile work environment, the employer must take reasonable steps to protect the interests of the victim as well as enforce an anti-harassment policy. 

This means taking disciplinary action against the employee in violation of workplace compliance that could range from a reprimand to a warning to a termination of employment. If the offending employee is allowed to keep their job, it may be best to physically separate the victim and their harasser to provide peace of mind for the victim (as long as the separation does not come at the expense of the victim, such as being transferred to a less desirable location).

If the investigator(s) did not confirm the allegations of a hostile work environment, the employer should still take reasonable measures to safeguard the interests and well-being of the victim. However, disciplinary measures against the alleged proponent of harassment are not warranted (though a physical separation of the conflicting individuals is still advisable for all parties' sake).

The FEHC regulations also state that an employer must take necessary remedial measures where there is proof of workplace misconduct that has not yet reached the level of a legal violation but is inappropriate conduct nonetheless that, if not stopped in time, will turn the workplace "hostile" in the legal sense. In other words, there is no need not wait for a mildly inappropriate workplace behavior to grow into a full-blown harassment case to do something: as soon as the employer becomes aware of any inappropriate behavior, they must impose remedial actions. 

Those remedial measures ought to be proportionate to the nature/level of misconduct committed by the offending employee and serve as a stern discouragement from committing the harassing behavior in the future. It is important that the employer reviews the company's history of handling similar situations to avoid claims of unfair (or legally discriminatory) remedial measures.

Typical remedial actions include staff training, verbal counseling, one-on-one counseling for executives, demotions, salary reductions, rescinding bonuses or commendations, termination of employment (in extreme cases), and other measures that ensure compliance and send a company-wide message that wrongful behavior is not tolerated at the workplace. 

The final step is to reevaluate the employer's workplace harassment policy and its implementation. Consider the harassment complaint a wake-up call! Even if no explicit violations were turned up by the investigation, such occurrences are a jolting reminder of unpleasant future possibilities lurking in the workplace: if one individual found cause to complain of harassment, there may be others.

It is therefore advisable that, regardless of the investigation outcome, the employer revisits their current anti-harassment policy to scan it for potentially confusing or unclear language, to make sure it accurately reflects the most recent updates under the FEHA, to ensure to have sufficiently communicated this policy (and other employee rights) to all employees and to check if the existing procedures for handling harassment complaints need to be clarified, revised, or elaborated to better serve the process.


Workplace Sexual Harassment Is A Highly Pervasive Problem

Although there are several ways to create a hostile environment at the workplace, the most commonly encountered type of workplace harassment is sexual harassment. Despite having been outlawed by the Title VII of the Civil Rights Act of 1964, workplace sexual harassment is still very much a problem today.

The two most commonly encountered types of workplace sexual harassment are:

  • Quid-pro-quo sexual harassment. This form of sexual harassment is when a supervisor, manager, or another "boss" directly or indirectly requests sexual favors from an employee of a lower position in exchange for work-related benefits (such as promotions, bonuses, vacation time, etc.)
  • Hostile work environment sexual harassment. This is the above-described, more broadly define the type of sexual harassment at the workplace that, unlike quid pro quo, does not involve hierarchical power abuse as part of the offense.

The disturbing fact that the most prevalent type of workplace harassment is sexual harassment should not be ignored by any employer invested in the mission and success of their business. Get in touch with us if you need help making the sexual harassment training deadline for California.


Preventing Sexual Harassment and Other Violations That Lead To A Hostile Environment At Work

As just about any employment law attorney will attest, the best measure an employer can take against workplace sexual harassment is prevention. Lasting prevention of sexual harassment, as well as other workplace discrimination practices, is best achieved through anticipatory training of every employee through every rung of the corporate ladder. 

EasyLlama's sexual harassment training program, which is in compliance with California law, offers an effective, comprehensive, easy-to-follow program that is built on the most updated scientific and organizational design knowledge, with the most updated software, optimized for the modern mobile workforce. 

No one should be forced to endure a hostile workplace, be it from emotional or physical harassment. Responsible employers know that employees who feel safe and protected from harassment are happier and more productive. They deserve the best training and your business deserves the best safeguards against employee distress, heavy government fines, and the unfavorable reputation that comes with fostering a hostile workplace.