We’ve seen plenty of hostile work environment claims recently, including the high-profile claims against Grammy winner Lizzo, the NFL, and the cancer-testing group Grail and the highly-publicized jury verdict against Tesla. But these claims are often misunderstood. We wrote this article to clarify some of the confusion and share some best practices for employers to avoid a hostile work environment.
Differentiating a Hostile Work Environment from Workplace Discrimination
California law, particularly the state’s Fair Employment and Housing Act (FEHA), provides strong protections against hostile work environment (harassment), workplace discrimination and retaliation.
A hostile work environment occurs when an employee experiences pervasive and/or severe harassment in the workplace based on protected characteristics, like race, gender, religion, or disability. The conduct must alter the conditions of employment or create an abusive atmosphere in the work environment to be deemed hostile.
On the other hand, workplace discrimination occurs when an employee experiences unfair or unfavorable treatment based on protected characteristics or being a member of a protected class. The unfair or unfavorable treatment may relate to hiring, promotions, job assignments and opportunities, compensation, or termination. Discrimination is not necessarily overt; it can be silent and pernicious (I.e., implicit bias).
Breaking Down the Key Legal Elements of a Hostile Work Environment Claim
The legal definition of a hostile work environment is “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.”
Inappropriate conduct refers to workplace harassment relating to a protected class, which in California, include:
- 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.
The list of protected characteristics in California continues to evolve. For example, beginning in 2024, FEHA was amended to include protections for duty cannabis use (with some exceptions).
Work environments where sexual harassment is severe or pervasive may also constitute hostile work environments.
Severe or pervasive.
The courts describe severe and pervasive as conduct that alters the terms and conditions of employment and creates a work environment that is intimidating, offensive, abusive or inescapable. A single act of harassment may be sufficiently severe to be unlawful. This is especially true if the conduct threatens the personal safety or physical wellbeing (such as a hate crime, rape, sexual assault, or a physical assault).
When considering whether behavior is pervasive, courts will consider the following factors:
- Whether it is verbal, physical, or both.
- Whether the harasser is a supervisor or peer.
- How many people engaged in the inappropriate behavior.
- How many people were targeted by the inappropriate behavior.
Reasonable Person Standard
The conduct must be such that a reasonable person with the same characteristics as the individual alleging a hostile work environment would find the environment hostile. This standard requires the behavior to be objectively and subjectively offensive.
Tips to Create a Better Work Environment
Here are some quick tips for creating a work environment that’s inclusive and promotes wellbeing:
- Provide proper training to managers and employees, including outlining the culture you value and expect at work. (Don’t forget, unlawful harassment training is the law in California!)
- Encourage employees to speak up when they don’t like being spoken to or treated a certain way.
- Implement and maintain a robust unlawful harassment, discrimination and retaliation policy that is communicated to employees and obtaining acknowledgments from employees of their receipt of the policy.
- Implement and maintain policies that prohibit work-related misconduct.
- Maintain a detailed and visible procedure for reporting complaints (I.e., employee hotline, Human Resources contact, reporting to management). Ensure that complaints are handled expeditiously –l promptly commencing a thorough investigation, and determining corrective action when warranted.
If you need assistance with your workplace policies and/or investigations, you are encouraged to reach out. The CGL employment attorneys would love to work with you and help you develop compliant workplace policies and practices.
The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this website or any of the e-mail links contained within the site do not create an attorney-client relationship between CGL and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.