A hostile work environment is caused by unlawful conduct for biased reasons which makes it difficult for employees to do their jobs. Workplace harassment may appear in two different forms: (1) quid pro quo harassment; or (2) hostile work environment harassment. A quid pro quo harassment claim generally involves a supervisor who relies upon his or her authority to extort sexual favors from another employee, or who rewards a paramour while treating other employees less favorably. A hostile work environment, by contrast, is created when the behavior of supervisors and/or coworkers subjects an employee to a hostile, intimidating, or offensive work environment. Any employee can contribute toward creating a hostile work environment.

How is a Hostile Work Environment Defined?

Having a difficult manager or being annoyed by a coworker is generally not enough to create a hostile work environment. The legal criteria for determining a hostile work environment under federal Title VII or the California Fair Employment and Housing Act (FEHA) is that the behavior involves unwelcomed conduct or harassment based on an employee’s race, sex, religion, age, disability, genetics, or pregnancy. The harassment must be severe and pervasive enough to alter the complaining individual’s employment conditions, which can include interfering with the employee’s ability to succeed at work. Although hostile work environments often involve sexual conduct or behavior, no explicit reference to sexual conduct or behavior is required.

Hostile work environment harassment is unwelcome by the employee and explicitly or implicitly affects an individual’s employment. Hostile environment harassment involves both an objective and subjective test. First, an objective determination must be made regarding whether the employee has changed his or her normal work activities to avoid the conduct, and that the conduct is interfering with the employee’s ability to succeed at work from the point of view of a “reasonable,” similarly situated person. Secondly, the hostile work environment is evaluated for its severity and pervasiveness measured from the point of view of the alleged victim.

The severe or pervasive standard means that a hostile work environment can be created by a single, severe incident (e.g., an assault), or it can be created by pervasive and consistent conduct. When a hostile work environment is proven, the individual harasser can be held personally liable for the damages created by their unlawful actions.

What is Considered Legally Actionable Conduct in a Hostile Work Environment?

A hostile work environment may appear in a variety of forms. Examples of actionable hostile work environment harassment may include verbal conduct (e.g., derogatory comments, jokes, sexual remarks, etc.), physical conduct (e.g., touching, physical interference with movement, hugs, sexual contact, etc.), and visual conduct (e.g., sexually suggestive or explicit pictures, posters, cartoons, emails, etc.). Sexual harassment law has expanded to include gender-based harassment or stereotyping. This may include negative comments or statements that are not of a sexual nature but that are directed toward a particular gender. An example may be a male supervisor reprimanding a male subordinate for not being aggressive enough and not “taking it like a man.” The employer must address a hostile work environment claim once the employer has witnessed it or has been notified of it by an employee. If the incident is ignored or not fully addressed, then the employer becomes responsible for creating a hostile work environment.

Hostile Work Environment: How We Can Help

The employment attorneys at Payne & Fears have decades of experience deciphering the details of both federal and state equal opportunity laws. Our attorneys routinely provide compliance trainings for employers using materials informed by the most recent hostile work environment actions and cases. Our attorneys also have experience defending clients against hostile work environment claims, whether those claims are made before administrative entities like the Equal Employment Opportunity Commission (EEOC) or in litigation in state or federal courts.

Payne & Fears represents employers from a cross-section of industries in hostile work environment matters. Our employment attorneys are on top of recent developments in employment law and are prepared to offer counsel and litigation support in hostile work environment matters of any size.