What Is a Hostile Work Environment in California?

The phrase gets used for any job that is miserable. The law uses it for something narrower, and in one respect wider.

A hostile work environment in California is harassment because of a characteristic the law protects, serious or frequent enough that a reasonable person in the same position would find it harder to do the job. Rudeness, bad management and unfair treatment are not, on their own, a hostile work environment. One incident can be. Most of this article is examples, because people recognize a situation in a list before they recognize it in a definition.

What is a hostile work environment in California?

The Fair Employment and Housing Act, Government Code § 12940(j)(1), makes it unlawful to harass an employee “because of” race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age (40 and over, by the Act’s definition), sexual orientation, reproductive health decisionmaking, or veteran or military status. The words “because of” carry the weight. The question is never only whether the conduct was bad; it is whether it was tied to who the person is.

How bad it has to be is set out by the Legislature itself, in Government Code § 12923. The test it adopts is that “a reasonable person subjected to the discriminatory conduct would find, as the plaintiff did, that the harassment so altered working conditions as to make it more difficult to do the job.” The person does not have to show that their output fell. And the same section says a single incident of harassing conduct is sufficient to create a triable issue if it unreasonably interfered with the person’s work or created an intimidating, hostile or offensive working environment. The firm’s hostile work environment page covers the statute in more depth; this article is about what the conduct looks like.

Examples that usually qualify

These are hypotheticals, grouped by the characteristic the conduct is tied to. None describes a real matter.

Because of sex or gender. Repeated comments about a person’s body, clothing or sex life. A proposition that continues after it has been declined. Sexual images on a shared screen or in a group chat. Being called a slur for women, or a slur for men who do not fit a stereotype. Remarks about a pregnancy, a person’s “baby brain” or when they will “really” come back. The statute says harassment because of sex includes sexual harassment, gender harassment and harassment based on pregnancy, childbirth or related medical conditions, and that sexually harassing conduct need not be motivated by sexual desire. A manager who demeans women as a group, without any sexual interest, is within it.

Because of race, national origin or ancestry. Slurs, including the ones delivered as jokes. Mimicking an accent. A nickname tied to where a person or their family is from. Comments about hair, food or dress that are really comments about race. Being told to “go back” anywhere.

Because of disability or medical condition. Mocking a limp, a stutter, a hearing aid or a tremor. Jokes about a diagnosis after the person has disclosed it. Repeated remarks that a person is a burden, faking it or “not pulling their weight” because of a condition the employer knows about.

Because of age (40 and over). “Dinosaur”, “grandpa” and “when are you going to retire”, repeated after the person has made clear they are not amused. Being cut out of meetings and information with a running commentary about the person’s age.

Because of religion. Ridicule of religious dress, grooming or observance. Pressure to join in prayer or to stop praying. Jokes about a faith that continue after the person has objected.

What the examples share is the tie to the characteristic and a pattern, or a single incident bad enough to stand alone. The statute’s own words for the threshold are “severe or pervasive”, and it is one or the other, not both.

Examples that usually do not, and what would change that

This is the half most explanations skip, and it saves people time.

A manager who shouts at everyone. Unreasonable deadlines, understaffing and unpaid weekends. Favoritism toward the boss’s friend. A performance review that is harsh, or wrong. Being passed over for a promotion that went to someone less qualified. A single rude remark with no connection to who the person is. A personality clash with a co-worker. All of these can make a job intolerable, and none of them is a hostile work environment claim on its own, because none is tied to a protected characteristic.

Three things change that picture.

• The “neutral” treatment lands on one group. A manager who is hard on everyone is not harassing anyone. A manager who is hard on the women on the team, or the older workers, or the one employee with a visible disability, and easy on everyone else, may be. The pattern is the evidence.
• The conduct comes with remarks. Yelling is not harassment; yelling that is laced with comments about a person’s race or age is. The statute says a discriminatory remark may be relevant circumstantial evidence even if it was not made in the context of an employment decision or was uttered by someone who was not a decision-maker, and the Legislature rejected the idea that such remarks can be set aside as “stray”.
• It started after a complaint. Treatment that worsens once a person reports harassment, requests an accommodation or raises a wage issue may not be harassment at all, but retaliation, which is a separate claim with its own rules.

If a situation sits near that line, it is worth having the facts looked at rather than deciding alone which side it falls on. A consultation with SoCo Law Firm is free and confidential.

The standard, in California’s own words

Section 12923 is unusual: the Legislature wrote down how it wants the standard applied, and each of its declarations answers an argument employers make.

• “Severe or pervasive” is the threshold, and one incident can meet it. Section 12923(b): “A single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment if the harassing conduct has unreasonably interfered with the plaintiff’s work performance or created an intimidating, hostile, or offensive working environment.”
• The whole picture counts. Section 12923(c) says the existence of a hostile work environment “depends upon the totality of the circumstances”, and affirms the California Supreme Court’s rejection of the “stray remarks doctrine” in Reid v. Google, Inc. (2010).
• No lost pay or position is required. Section 12940(j)(1): “Loss of tangible job benefits shall not be necessary in order to establish harassment.”
• These cases are not meant to be decided on paper. Section 12923(e): “Harassment cases are rarely appropriate for disposition on summary judgment.” That is a statement about how the claims should be handled, not a prediction about any case.

Who is covered, and who is responsible

Almost every employer. For harassment, the statute defines “employer” as any person regularly employing one or more persons, and the Civil Rights Department states that “Harassment is prohibited in all workplaces, even those with fewer than five employees.” The five-employee threshold that applies to discrimination claims does not apply here. The one carve-out in that definition is a religious association or corporation not organized for private profit, “except as provided in Section 12926.2” of the Act.

More than employees. The protection covers an employee, an applicant, an unpaid intern or volunteer, and “a person providing services pursuant to a contract”. That last phrase is a defined term with a three-part test in the statute, not a synonym for every contractor, so whether a particular freelancer or vendor’s worker is within it depends on the facts of the arrangement.

Harassment by a co-worker or an outsider. For harassment by an employee other than an agent or supervisor, the statute makes the employer responsible if it, or its agents or supervisors, “knows or should have known of this conduct and fails to take immediate and appropriate corrective action.” The same test applies to harassment by non-employees, a customer or a vendor for instance, with the extent of the employer’s control over them taken into account. The statute writes that knowledge condition for co-workers and non-employees; it does not write it for supervisors and agents.

The duty to prevent. The statute adds that “An entity shall take all reasonable steps to prevent harassment from occurring,” and section 12940(k) makes the failure to take all reasonable steps necessary to prevent discrimination and harassment an unlawful employment practice as well. The statute lists that duty beside the harassment itself, not in place of it, which is why what the employer did after it was told is so often the center of a harassment case.

What usually happens next, in order

Information, not instruction: each step is one a person can take or not.

1. A record. Dates, what was said or done, who was present, and how it affected the work. Contemporaneous notes carry more weight than a reconstruction months later.
2. The policy. Most employers have a written harassment policy with a reporting route. The statute’s duty to correct turns on whether the employer knew or should have known, so a report is not a condition of the protection; it is the plainest proof of knowledge, and its date becomes a fixed point in the record.
3. Copies. Of what the person legitimately has: the policy, messages they were sent, their own reviews. Material a person is not entitled to can damage an otherwise sound claim.
4. What changes afterward. Schedules, assignments, tone, a sudden review. If conditions worsen after a report, that is the retaliation question above.

Where the conduct is sexual, the firm’s sexual harassment page covers the same ground with that focus.

From the other side of the table

When a harassment complaint reaches an employer’s lawyers, the first thing they ask for is usually not the conduct. It is the file on what the company did after it was told: the date the complaint was made and to whom, whether a written policy existed and had been distributed, when the investigation started and ended, who was interviewed, what was found, and what changed for the person who complained and for the person complained about.

The reason is in the statute. An employer’s responsibility for a co-worker’s conduct turns on whether it knew or should have known and what it did, and the statute lists the failure to take reasonable steps to prevent harassment as an unlawful practice beside the harassment itself. A careful employer can produce that file within a day. An employer that cannot, or whose file shows a complaint that sat for weeks, has a second problem on top of whatever happened on the floor. From the employee’s side, the same file is often the strongest part of a harassment case, which is why the date the employer first knew matters so much.