The California Fair Employment and Housing Act (FEHA) makes hostile work environments unlawful. It can be tricky to determine what qualifies as unlawfully hostile work environment, versus a toxic, but not illegal, work environment. Sexual harassment is one of the primary causes of an unlawful hostile work environment. Below we will review what qualifies as sexual harassment, and when it rises to the level of creating a hostile work environment under California hostile work environment laws.
Introduction to California Hostile Work Environment Laws
Numerous federal and state employment laws, including the Civil Rights Act of 1964 (CRA) and the California Fair Employment and Housing Act (FEHA), protect employees from working in a hostile environment. According to these laws, a hostile work environment occurs when harassing unwelcome conduct (based on race, gender identity, national origin, sexual orientation, or any protected characteristic) creates a work environment that a reasonable person would consider intimidating, hostile, abusive, or impacts the employee’s ability to work. Workplace harassment from a supervisor, coworker, team member, client, or vendor could reasonably create a hostile work environment, so long as the employer does not take necessary steps to prevent harassment from occurring.
Sexual harassment is one of the most common causes of a hostile work environment. Sexual harassment creates a hostile work environment when it makes the workplace intimidating, hostile, or abusive. To be considered a hostile work environment, the behavior must be pervasive or severe enough to alter the terms of employment.
It is important to note that not all toxic work environments are legally considered to be unlawful hostile work environments. There are many factors that could cause a work environment to be toxic; an unkind boss, favoritism, a rude coworker, or an unpleasant office space might all lead to a toxic company culture. Federal and state law do not protect workers from general work place harassment or bullying unconnected with a protected class. The law only protects workers from environments in which offensive behavior or conduct targets a person because of their protected class.
Understanding What Qualifies as Sexual Harassment
Legally, sexual harassment includes verbal or physical conduct that is sexual in nature and motivated by an employee’s sex, gender identity, or sexual orientation. Anyone, regardless of sex or gender, can be the victim of unwanted harassment, and anyone, regardless of sex or gender, can perpetrate sexual harassment. Sexual harassment comes in many different forms and can include a wide range of behaviors.
Harassment may be verbal, including threatening, offensive, or objectifying comments, and inappropriate jokes. It may be written in the form of emails or text messages, containing offensive language or images. It may be physical, through inappropriate or unwelcome touch and gesturing. Conduct that occurs inside or outside of work may qualify as workplace sexual harassment. The California Fair Employment and Housing (FEHA), and federal employment law, prohibit workplace sexual harassment.
Types of Sexual Harassment in the Workplace
There are two main forms of prohibited sexual harassment at work: hostile work environment harassment, and quid pro quo harassment.
Hostile Work Environment: Hostile work environment harassment refers to sexual harassment that is severe or pervasive, so as to create a hostile workplace and interfere with an employee’s work. Harassment is considered severe if it is egregious to the point that one occurrence of the harassing behavior makes the environment hostile. Harassment is considered pervasive if it occurs repeatedly, so as to create a hostile workplace environment. Harassing conduct may include unwanted sexual advances, sexual comments, lewd and offensive comments, sexual assault, physical conduct of a sexual nature, innuendos. You do not need to be the victim of harassment to experience a hostile work environment; witnesses to severe or pervasive sexual harassment at work may experience a hostile work environment resulting from the conduct.
Quid Pro Quo: Quid Pro Quo sexual harassment occurs when participation in a sexual behavior is represented as a condition of employment. For example, a supervisor suggesting that you may receive a promotion if you go on a date with them, or a manager telling you that they will hire you in exchange for a sexual favor, are both considered illegal quid pro quo harassment. One event of explicit or implied quid pro quo harassment could be unlawful. Quid pro quo sexual harassment may also create a hostile work environment.
Protected Classes and Intersection with Sexual Harassment
Anyone, regardless of sex, can be a victim or a perpetrator of sexual harassment. California law prohibits harassment not only based on sex, but also gender identity, sexual orientation, and gender expression. Any harassment tied to sex, gender, and or sexual orientation is considered sexual harassment in California. Sexual harassment may also overlap with other forms of harassment and discrimination at work, for example race based harassment. Intersectional harassment, for example harassment particularly targeting women of color, may intensify a hostile work environment.
Employer Responsibilities to Prevent and Respond to Hostile Work Environments
Both federal and California law hold employers responsible for facilitating a workplace that is free from harassment. Under the law, employers are required to take steps to prevent harassment from occurring, and to take the appropriate steps to address harassment if it does occur at their job site.
Employers are responsible for making proactive sexual harassment prevention a priority. Employers should explicitly spell out their anti-harassment policy in a company handbook or other company materials, and emphasize a zero-tolerance policy for harassment. Companies must be proactive about educating their staff at all levels, from senior management to entry level staff members, about their rights at work, and what constitutes hostile work environment sexual harassment.
Employers must also ensure that all employees have a clear understanding of what to do if they experience or witness harassment at work, and the companies’ policies for addressing harassment at work. Regular sexual harassment prevention training programs, a clear company handbook, and a healthy institutional culture, may all help to proactively limit hostile work environment sexual harassment.
Even if an employer takes proactive steps to limit harassment, harassment may still occur. It is essential that employers respond promptly and thoroughly to any reports of harassment, and that those reporting harassment are heard and supported. Employers should conduct timely investigations, and impose appropriate disciplinary action on harassers. If employers fail to respond appropriately to employee reports of harassment, they open themselves up to further legal liability.
Employee Rights and Legal Options in Hostile Work Environment Cases
Federal and California State laws give employees the right to work in a workplace free of sexual harassment, and hold employers liable for hostile conditions at work. Employees experiencing hostile work environment sexual harassment have the right to pursue legal options by first reporting the issue internally, then filing a complaint with the federal Equal Employment Opportunities Commission (EEOC) or California Civil Rights Department (CRD) if internal measures fail, and finally, pursuing a private lawsuit. Remedies to private lawsuits can include financial compensation for damages like lost wages and emotional distress, punitive damages, and may also result in institutional policy changes.
Anti-retaliation laws protect employees who report sexual harassment at work. If you report hostile work environment sexual harassment to your employer, resist harassment in the workplace, or participate as a witness in a harassment complaint, your employer may not take adverse action against you as a result. If your employer has treated you unfavorably because you reported or resisted any form of sexual harassment, your employer may be liable for retaliation, in addition to failing to prevent sexual harassment.
Take Action and Reach Out To a Hostile Work Environment Attorney Today
Most of us spend a significant portion of our lives at work. As such, it is important that you feel safe and comfortable in the workplace. If you feel unsafe or uncomfortable at work or believe you may be dealing with a hostile work environment, it is important to take action. The right course of action will depend on your circumstances. For some, it may be effective to report hostile or harassing conduct to a manager, supervisor, or HR. For others, it might be best to leave the job behind and search for a healthier workplace. Others may consider taking legal action by bringing a hostile work environment claim against their employer. No matter your circumstance, it is beneficial to consult with an employment attorney at a law firm who can assess your situation and provide legally informed advice about potential next steps.
