Everyone in California is familiar with the concept of harassment or discrimination to varying degrees; some forms are so blatant, that everyone knows harassment or discrimination is occurring. However, there are insidious forms of harassment that most people don’t identify – this form of harassment is known as a “hostile work environment.”
Unlike sexual harassment claims, in which a plaintiff can state a cause of action under a theory of either quid pro quo or “hostile work environment”, claims of harassment on other bases involve only the “hostile work environment” theory.
Under the “hostile work environment” theory of harassment or discrimination, it is not required that you be subject to direct harassment ; simply being in an environment where harassment is pervasive and severe enough to alter your working conditions and create a hostile work environment will suffice.
The Fair Employment and Housing Act (“FEHA”) is a federal statute, which among other things, prohibits harassment and discrimination. Specifically, the FEHA prohibits harassment and discrimination based on “race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation or military and veteran status.”
The Courts in California, applying California law, apply a similar standard to discrimination and harassment as the FEHA. In order to make a claim for “hostile work environment”, the Plaintiff must show: (1) You were a member of a protected class, (2) you were subject to unwanted harassment or discrimination, (3) the harassment or discrimination was based on your membership of a protected class, (4) the harassment or discrimination unreasonably interfered with your work performance by creating an intimidating, offensive, or hostile work environment, and (5) the employer is responsible for that harassment or discrimination.
As it relates to the “hostile work environment” theory of harassment or discrimination, the harassing conduct does not need to be so severe that you suffer psychological damage, the conduct must only make it reasonable to perceive the work environment as intimidating, offensive, or hostile. It should be noted that you will be required to show a connection between the “hostile work environment” and your experience within the workplace – thus, to pursue a claim of “hostile work environment” based on the harassment of another employee, it is necessary that you actually perceived the harassment; without personal exposure to the harassment in some fashion, that harassment could not reasonably alter the conditions of your employment and create a “hostile work environment.”
The remainder of this article will go in depth into each element of the “hostile work environment” theory of sexual harassment, along with actual cases where the Courts found the existence, or possible existence, of a “hostile work environment.”
As you are reading through this, you will notice that the major factor that distinguishes the “hostile work environment” theory from the more standard theories of harassment is the fourth factor: “the harassment unreasonably interfered with your work performance by creating an intimidating, offensive, or hostile work environment.”
This factor acknowledges the crux of the issue: while you may not be directly affected by harassment, that harassment could have the side-effect of altering you working conditions to the point that is unbearable to continue working there; the law has determined that this an actionable offense. With the framework set forth above, let’s dive in.
- You Were a Member of a Protected Class
The first factor you must established when pursuing a claim for harassment under the “hostile work environment” theory, is that you were a member of a class of people that the FEHA and California statutes were designed to protect. The FEHA defines the protected classes as “race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation or military and veteran status.” If you are not a member of one of these specifically enumerated classes, your claims for harassment cannot be resolved under the “hostile work environment” theory of harassment.
- You Were Subject to Unwanted Harassment or Discrimination
The second factor you must establish when pursuing a claim for harassment under the “hostile work environment” theory, is that you were subject to unwanted harassment. Mere discussion is not, by itself, enough; the FEHA does not outlaw sexually coarse and vulgar language or conduct that merely offends. Further, because the inquiry focuses on the workplace environment as a whole, a hostile environment may exist even if some of the hostility is directed at other workers.
Illustration 1: Hispanic employee could complain of hostile environment based on personnel manager’s frequent references to “n*ggers” in her presence and slurs re: Hispanics behind her back.
Illustration 2: Plaintiff failed to establish hostile work environment by evidence of isolated rude, offensive, and boorish comments and nonsexual and slight touching made by Defendant who did not work in same building as Plaintiff and who was not Plaintiff’s supervisor.
In order to succeed under a “hostile work environment” theory, you will need to show something more than isolated incidents, or an environment that was expected in the context of your employment. We will discuss this more when we reach the fourth factor. The next factor is straightforward, but must be included.
- The Harassment Was Based on Your Membership to a Protected Class
The third factor you must establish when pursuing a claim for harassment or discrimination under the “hostile work environment” theory, is that the harassment you have been subject to is based on your membership of one of the specifically enumerated classes in the FEHA. If the harassment is based on your membership of an unprotected class, you may be able to seek a remedy under a different theory, but that is beyond the scope of this article. Harassment based on your membership, in this context, means you received disparate treatment on the basis of your membership in a protected class.
Illustration 1: Defendant television writers defeated Plaintiffs claims for sexual harassment because none of the alleged sexual antics and coarse language was directed at Plaintiff. Upon being hired, Plaintiff was warned that creative process in writing show involved sexual discussions and coarse language, and most of the conduct took place in group sessions with both male and female writers recounting sexual experiences while brainstorming and generating script ideas for adult-themed show; Plaintiff failed to show how vulgar discussions and conduct affected her work hours or duties in disparate manner.
As the illustration above shows, environments where there is crude and sexual language, which is consistent with the nature of the job, will be insufficient to support a “hostile work environment.”
- The Harassment Unreasonably Interfered With Your Work Performance by Creating an Intimidating, Offensive, or Hostile Work Environment
As mentioned at the beginning of the section detailing the various factors, this is the crux of the “hostile work environment” theory of liability. Under this factor, the critical point to be proven is that a reasonable person of the protected class would perceive the harassment as severe and pervasive. The “reasonable person” test is ubiquitous throughout the law, and embodies what the average person would understand and believe. Thus, the law will not provide a remedy under the “hostile work environment” if you are unusually sensitive to certain conduct. The requirement that the evidence be viewed from the perspective of a reasonable person of the protected class acknowledges that certain words or conduct that appear innocent to nonmembers of the group may be “intolerably abusive” to members of the targeted group. It is worth repeating: “To prove racial or ethnic harassment, plaintiffs must establish that they were subjected to offensive comments or other abusive conduct that were clearly based on plaintiffs’ race or ethnicity and were sufficiently ‘severe’ or ‘pervasive’ to alter the conditions of their employment.”
Illustration 1: Plaintiff provided sufficient evidence of severe and pervasive sexual harassment because: (1) the manager spread rumors about plaintiff having sexually transmitted herpes, (2) the manager speculated about sexual relationship between plaintiff and another employee in a profane manner, and (3) the manager directed plaintiff, in front of customers, to display her buttocks to increase sales.
Illustration 2: Supervisor’s comments to Puerto Rican plaintiff that her shawl looked like a poncho and that her curly hair looked “more relaxed and professional” when she blew it dry, and coworker’s remarks concerning nearby taquerias, were neither the type that would have interfered with a reasonable employee’s job performance nor pervasive enough to support a claim for harassment.
Illustration 3: An African-American actor hired to participate in a film written and produced by and starring Marlon Wayans, “an artist known for his frequent use of both n*gger and n*gga in his work,” would be on notice that racially-charged language might be used. Consequently, use of the term “n*gga” in that context would not be objectively offensive to a reasonable actor and would not create a hostile or abusive work environment.
- The Employer is Responsible for the Harassment
In California, an employer has a statutory duty to prevent and remedy instances of harassment. An employer who fails to remedy problems of which it has actual or constructive knowledge may be held liable for harassment despite the existence of a formal policy against harassment. “While Title VII does not require an employer to fire all ‘Archie Bunkers’ in its employ, the law does require that an employer take prompt action to prevent such bigots from expressing their opinions in a way that abuses or offends their co-workers.”
If you or a loved one have been subject to a work environment that has become unbearable as a result of harassment, you may have a remedy at law. Similar to most cases of harassment, it takes a skilled attorney to lay the evidentiary and procedural framework necessary to succeed in a Court of Law. At Yeremian Law, we have years of experience representing employees like you, who have been wronged by their employers. Contact us today for a free consultation; nobody she be forced to continue working in a “hostile work environment”, and we are here to fight on your behalf.