Most people can generally say that they have worked jobs with unpleasant bosses and unfriendly coworkers. But when negative behavior crosses the line into discrimination and harassment to a degree that becomes abusive or intimidating and makes it impossible for someone to do their job, it may be considered a hostile work environment. It is important to know what steps to take and what options and legal protections you have if you find yourself in such a situation.
What is the Definition of Hostile Work Environment?
Just because there is a negative work environment, does not necessarily mean there is a hostile work environment. However, there are several factors involved in determining if a hostile work environment is present:
- Discrimination of a protected class
- Offensive conduct
- Threats and/or intimidation
- Physical and/or mental abuse
- Hinders the employee’s ability to do their job
Employers are not only liable for creating a hostile work environment, they are also liable if they allow it to occur. There are both state and federal laws that combat employment harassment and discrimination including hostile work environments. California law determines that a hostile work environment is present if there is severe or pervasive abusive conduct.
What are Considered Criteria for a Hostile Work Environment?
In order to determine if a situation constitutes a hostile work environment, it is important to ask the following questions:
- Is conduct discriminatory or retaliatory against a protected class or action?
- Is the conduct ongoing and constant?
- Would a reasonable person feel the conduct creates a hostile or abusive environment?
- Has the victim’s ability to do their job been negatively affected?
- Did the employer know or reasonably should have known about the situation?
- Did the employer fail to take action to stop the abusive conduct?
What Is Not Considered a Hostile Work Environment?
Just because there are factors present that create an abusive work environment, that does not mean it is considered hostile under the definition of the law. Many situations may be unfair or upsetting, but are not illegal, such as:
- An employer showing favoritism with no discrimination against a protected class
- Coworkers ostracizing an employee because they don’t like their personality
- An employer who yells at everyone and is always rude to all employees
- A coworker making an insulting comment once
- An employer making new employees do the worst job duties
What Constitutes a Hostile Work Environment in California?
The following patterns of behavior are enough to make a workplace a hostile environment.
When Hostile Behavior Becomes Discriminatory
Both federal and state laws protect employees from workplace discrimination. A hostile work environment can occur when discrimination becomes pervasive and severe enough to negatively impact the employee’s ability to work. Categories protected from discrimination include:
Age – Workers who are forty or older are protected from discrimination.
Disabilities – Workers with physical or mental impairments or illnesses are also protected from discrimination. Conditions are generally chronic and limit major life activities such as:
- Sensory impairment
- Cerebral Palsy
- Missing limbs
- Clinical depression
Genetic Information – Employers are prohibited from collecting genetic information from their employees or using that information against them. This includes testing and family histories of diseases.
Medical Conditions – Characteristics associated with diseases or health issues related to cancer are also protected under anti-discriminatory laws. Employees do not need to be actively experiencing symptoms in order to be protected.
Race – Not only is it illegal to discriminate against someone for their race, color, ancestry, or national origin, but it is also illegal to discriminate against someone due to the race of the people they associate with. Workers are also protected against being discriminated against for being perceived as a race that is not their own. Things like racial slurs, offensive jokes, and derogatory comments are prohibited.
Religion – Employers are prohibited from discriminating against employees for their religious beliefs or practices. This may include harassing someone with slurs and stereotypes or refusing to allow someone to take time off to observe holidays.
Sex – Sex based discrimination covers a wide range of categories in addition to biological sex.
- Gender – Discrimination against someone for their gender identity or presentation is prohibited regardless of their biological sex.
- Sexual Orientation – It is illegal to harass or discriminate against employees for their sexual orientation or perceived sexual orientation.
- Pregnancy – Employers cannot discriminate against an employee who is pregnant, experiencing complications of pregnancy or childbirth, an employee who is breast feeding, or an employee who could become pregnant.
- Sexual Harassment – Sex based discrimination includes unwanted and offensive conduct that is of a sexual nature including comments, jokes, invasive questions, unwelcome sexual advances, and threats.
Toxic Work Environment
A toxic environment can be an early warning sign that a work environment may become hostile. When observing toxic behavior in the workplace concerning discrimination, harassment, bullying, hostility, or insults it is important to keep a record of everything. Be as specific as possible regarding dates and times, who said what, and who was present. It is also usually a good idea to report these things to human resources or upper management in writing and via email if possible.
Consistent Hostile Behavior in the Workplace
Generally speaking, minor isolated incidents do not constitute unlawful harassment or a hostile work environment. The EEOC requires that the harassing conduct in question be pervasive and severe in order to qualify. What they describe as “petty slights, annoyances, and isolated incidents” do not count on their own. Smaller incidents should still be documented, however. Keeping detailed records is one of the best ways to prove that the behavior is consistent. Discriminatory or harassing behavior should also be reported to management or human resources.
Inappropriate Behavior Becomes Aggressive
Hostile behavior in the workplace is usually aggressive. This can be physical or verbal in nature such as intimidation, yelling, insults, or general cruelty. Aggressive behavior and bullying in general are not always proof of a hostile work environment, but they are a factor. When physical aggression is involved, the most important thing is everyone’s safety. Try to deescalate or remove yourself from the situation and report the incident.
Hostile Behavior Disrupts the Ability to Work
One major way to know that a work environment has become hostile is when it begins interfering with your ability to do your job. Consistent aggressive behavior can make it impossible to concentrate on the tasks at hand. Discrimination and sabotage can also make it impossible to advance your career further. The matter should be reported to human resources via email, and it may be time to contact the EEOC and consult with an employment attorney.
Hostile Work Environment Requires a Formal Complaint
Most companies have their own guidelines and procedures for reporting and addressing discrimination, harassment, and hostile work environments. If you have an employee handbook, it should be outlined there. It is always important to be sure that you have made a formal written complaint and given your employer the opportunity to address and remedy the situation. It is also good practice to be sure that you retain a copy of the complaint and proof that you submitted it. If your employer does not take action, you may want to explore your legal options.
Signs of Hostile Work Environment
There are many elements that create a hostile work environment and many signs that this may be what you are experiencing. Some things to look out for include:
Discrimination – Slurs, jokes, and derogatory comments made about someone’s age, race, religion, gender, sex, orientation, or disability.
Images – Pictures and symbols including photographs and drawings that are offensive or threatening being displayed in the workplace or posted or sent online.
Sexual harassment – Jokes, comments, and questions of a sexual nature, propositions, requests for sexual favors, threats, and unwanted physical contact that a reasonable person would find offensive.
Bullying – Insults, jokes, pranks, derogatory comments, and ostracization in the office, online, and at work sponsored social functions.
Sabotage – Ruining someone’s work or reputation, setting them up to fail, or holding them to impossible standards or higher standards than everyone else.
Intimidation – Physical or verbal threatening behavior such as blocking someone’s path, shouting at them, or standing in their personal space.
Touching – Unwanted physical contact that would reasonably be considered uncomfortable. Even “harmless” touching if the person is asked to stop and does not.
Favoritism – Employers granting perks, benefits, and promotions to select employees and not others based on personal preference. This is unlawful if it is based on protected characteristics.
Minor offenses – Some things such as isolated incidents and general unpleasantness that would not be enough to warrant a hostile environment on their own but these can pile up and supplement other problematic behaviors.
Am I Experiencing a Hostile Work Environment?
Just because a work environment is bad, does not necessarily mean that it is hostile by legal definition. Employers do not have a responsibility to provide an emotionally healthy and positive work environment. Being a generally terrible boss is not illegal on its own. The law considers a work environment to be hostile when that hostility is motivated by discrimination against protected characteristics. When trying to determine if you are experiencing a hostile work environment, consider the following:
- Is the boss mean to all of the employees, or only people belonging to certain groups?
- Is there personal favoritism, or are specific types of people shown special treatment?
- Is the employer only hiring or firing certain types of people?
- Are the negative comments being made about specific types of people?
- Have there been one or two incidents or is there a consistent pervasive problem?
Reporting a Hostile Work Environment
If an employee is experiencing a hostile work environment, the first step is to file a detailed complaint with their employer. This complaint should be made in writing and sent via email to the human resources department. If there is no human resources department, the complaint should be filed with upper management. If the employer does not take action to resolve the issue, then the employee can file a complaint with the California Department of Fair Employment and Housing. The DFEH may investigate the matter and try to resolve it on their own or issue the employee a right to sue letter. At this point, the employee may file a lawsuit against their employer.
How to Prove a Hostile Work Environment?
One of the best ways to prove a hostile work environment is through documentation. Having a detailed timeline of events and proof that the issue was brought to the employer’s attention. Retain copies of all complaints and email or text conversations regarding the situation including any correspondence that illustrates the discrimination or harassment. Witness testimony is another important piece of evidence. Sometimes coworkers can attest to having seen and heard the hostile treatment firsthand.
Employers Responsibilities When Discovering a Hostile Work Environment
When there is a hostile environment in the workplace, it is the employer’s responsibility to respond quickly and effectively. There are several steps an employer can take to appropriately address the issue:
Listen – Employers should always take complaints seriously. Do not disregard or brush off employee concerns or assume they are overreacting. Pay attention to what they are saying and gather all the information necessary. If the employee is concerned for their wellbeing, find a way to remove them from the situation in a way that is not punishing them for coming forward. Let them know that you hear them and that you are taking the matter seriously.
Investigate – A thorough and impartial investigation should be conducted with as much confidentiality as possible. The company can have an internal investigation procedure or bring in a third party. The investigator should look into all the facts of the situation including conducting individual interviews with the accuser, the accused, and any possible witnesses. The employer should take all of the information collected into consideration to be sure that a fair and reasonable judgment is made.
Communicate – All parties involved should be updated as to the results of the investigation. A written correspondence should be issued in a timely manner declaring that either the harassment was confirmed, or that it could not be confirmed.
Take Action – If the investigation confirms the employee’s complaints, the employer has a responsibility to act. The guilty party should face appropriate disciplinary action be it a write up, suspension, or termination depending on the severity of the situation and the company’s anti-harassment policies. If the punishment is not termination or harassment cannot be confirmed, it may still be appropriate to reassign one of the parties so that they are no longer required to interact. It is important to be certain that any action taken does not also punish the victim. Regardless of the outcome, it may be necessary to review and update the company’s policies and training regarding harassment and discrimination prevention to prevent further incidents.
Ways to Prevent a Hostile Work Environment
The state of California has laws and guidelines in place to ensure that employers are taking action to prevent workplace harassment and hostile work environments.
All employers are expected to have written company policies addressing harassment, discrimination, and retaliation prevention. These policies must be provided to all employees and include:
- A list of all of the categories protected under the FEHA
- A reminder that coworkers, management, supervisors, and third parties are prohibited from engaging in unlawful practices
- A process for filing complaints beyond the employee’s immediate supervisor
- A reminder to supervisors to report any complaints to HR or designated representatives
- An assurance that complaints will be investigated in a timely, thorough, and fair manner
- An assurance that confidentiality will be kept as much as is possible
- An assurance that action will be taken if the investigation confirms misconduct
- An assurance that employees will not face retaliation for filing complaints or participating in an investigation
There is also literature created by the DFEH such as a sexual harassment brochure and an information sheet that should be provided to employees. The DFEH’s anti-discrimination and harassment posters must also be posted somewhere that is prominent and accessible to all employees.
Employers in the state of California with five or more employees must provide all employees in California with sexual harassment prevention training every two years. Supervisory staff must undergo two hours of training while nonsupervisory staff must undergo one hour of training. The training must include:
- An understanding of state and federal laws
- Ways to prevent and respond to abusive conduct
- Practical examples of discrimination, harassment, and retaliation
- Remedies available to those facing workplace harassment
- Ways to prevent and respond to general workplace bullying
Recent laws also added that other sex-based harassment such as gender identity and presentation, transgender status, and sexual orientation also be covered in mandated training.
Contact Mesriani Law Group If You Are Experiencing a Hostile Work Environment
Being in a hostile workplace can take enough of a toll on a person without the added stress of filing a lawsuit. If all other options have been exhausted and it is time to take legal action, it may be best to seek the help of an employment attorney. A lawyer can help guide you through the process and fight for your best interests. Facing discrimination and harassment in the workplace is something that no one should have to go through alone. Our attorneys are hardworking, experienced, and dedicated to getting our clients the compensation they deserve. If you have been the victim of a hostile work environment, call Mesriani Law Group today for a free consultation.
Hostile Work Environment FAQs
What qualifies as a hostile work environment?
When discriminatory and harassing behavior becomes so pervasive and constant that it negatively impacts an employee’s ability to do their job, then it may be considered a hostile work environment. The offensive behavior must be motivated by discrimination based on a protected characteristic such as age, race, religion, sex, gender, sexual orientation, disabilities, or as retaliation for whistleblowing.
How do you prove you are in a hostile work environment?
One of the best ways to prove a hostile work environment is through documentation. Keep copies of any correspondence or documents that show discrimination or harassment. Make detailed written complaints sent to human resources via email. Create a timeline of events detailing exactly what happened, when it happened, and who was involved. It is also extremely beneficial to have eyewitness testimony as well if possible.
What four factors contribute to a hostile work environment?
Creating a hostile work environment includes many aspects and details. While every situation is different, the main determining factors that define a hostile work environment are:
• Discrimination against a protected class or retaliation against a protected action
• Conduct that any reasonable person would find abusive
• Conduct that is pervasive and consistent
• The victim is unable to perform their job due to the conduct
What are the signs of a toxic workplace?
There are many early warning signs that a work environment has become toxic:
• A lack of morale among employees
• Abusive or aggressive employers
• Unchecked harassment among coworkers
• Unfairly high standards and harsh reprimands for not meeting them
• Uneven workloads
• Favoritism and nepotism
• A high number of stress induced health issues