Hostile Work Environment | California Law & How to Fight Back

Work is vital to life. Not only does it provide you with an income, but it’s supposed to fulfill and enrich your soul. Unfortunately, in today’s world, work often becomes a scary and intimidating place. If it has become a nightmare for you to go to work, you may be experiencing a hostile work environment. 

But what exactly is a “hostile work environment?” This page will detail California’s hostile work environment laws without all the legal jargon, and explain what you should do if you’ve become a victim. This page was written by Branigan Robertson, a California employment lawyer.

Here are shortcuts down to specific parts of this page:

• The legal definition of a hostile work environment
• What kinds of conduct break the law?
• What should you do if you’re a victim?
• How much money are hostile work environment cases worth?
• The deadline to file your case
• How employers should respond to complaints

If you would rather watch this video on YouTube, click here.

The Legal Definition of a “Hostile Work Environment”

Most people understand that there is a difference between things that are unfair and things that are illegal. People say stupid things at work all the time, but that doesn’t necessarily mean that the law was broken. So, what kind of behavior is unlawful? What exactly is a hostile work environment?

In California, an unlawful hostile work environment is a workplace where unwelcome comments or conduct are made to the employee because the employee has a protected characteristic. The comments or conduct must be so severe or pervasive that it alters the working conditions and creates an abusive work environment. Additionally, the conduct must unreasonably interfere with the employee’s job performance or create an intimidating or offensive work environment. Finally, a reasonable person in the victim’s shoes would also consider the work environment to be hostile or abusive.¹

There is a lot going on in that definition. Let’s break it down into its core parts:

1. The bad behavior must be unwelcome.
2. The bad behavior is being said or done to the employee because he or she has a protected characteristic (more on this below).
3. The bad behavior must be severe or pervasive. This means the behavior must be really bad or occur multiple times.
4. The bad behavior must interfere with the employee’s ability to do the job, or create an intimidating or abusive environment.
5. A reasonable person in the victim’s shoes must also have considered the bad behavior to be hostile or abusive. 

If all five of these elements are met, then it is likely that you are experiencing an unlawful hostile work environment. 

California’s Protected Characteristics

Before we move on we need to make sure that you understand that, for the law to be broken, the bad behavior must be motivated by the victim’s protected characteristic. What is a protected characteristic? 

The California Legislature has created eighteen protected categories:

1. Race,
2. Religion (religious creed),
3. Color, 
4. National origin, 
5. Ancestry, 
6. Physical disability, 
7. Mental disability, 
8. Medical condition, 
9. Genetic information, 
10. Marital status, 
11. Sex (also includes pregnancy and related medical conditions), 
12. Gender,
13. Gender identity, 
14. Gender expression, 
15. Age (if over 40 years old), 
16. Sexual orientation,  
17. Military, and 
18. Veteran status.

If you are being treated poorly at work because you have one of these characteristics, you may be in a hostile work environment.

The “protected characteristic” requirement is what elevates the bad behavior from a perfectly legal toxic work environment to an unlawful hostile work environment. Most people simply assume that bullying at work is illegal. But it’s not. It is completely legal unless it is based on a protected characteristic – at which point it becomes a hostile work environment. Mr. Robertson made an entire video on the differences between bullying, discrimination, and a hostile work environment. You can watch it here.

Also, what is the difference between “harassment” and a “hostile work environment?” Well, that’s easy – they are usually the same thing. Lawyers use the terms interchangeably. If you would rather use the term harassment, visit our harassment page here.

Who is Behaving Badly? Your Supervisor or a Co-Worker?

If a supervisor or managerial employee at the company is the perpetrator of the hostile environment at work, the company is automatically liable. This means the company is legally responsible and on the hook financially. 

However, if a co-worker is the perpetrator of the hostile environment, then the company will only be legally liable if it knew or should have known the bad behavior was occurring and failed to take action.

This is why it is very important that the victim complain in writing to the employer if they are being subjected to a hostile work environment. Now that the company knows it is taking place, if the company fails to take action they will be responsible.

Of course, the individual bad guy or girl can still be held personally liable even if the employer didn’t know or it was shown the employer had no reason to know of the bad behavior.

What Kinds of Conduct May be Considered a Hostile Work Environment?

Any kind of verbal, physical, or visual conduct could meet the legal definition. It all comes down to the context of the situation and what is motivating the perpetrator to do or say the bad things.

Obviously, this can include sexual harassment. We cover this extensively on our sexual harassment webpage, but it can include touching, grabbing, groping, and rubbing. It can include unwanted comments regarding how you look, what you’re wearing, your body type, and more. It can include repeated requests to go out on dates and retaliation for turning down the requests.

Aside from sexual harassment, a hostile work environment can also include offensive conduct. However, for offensive conduct to constitute a hostile work environment, it must be motivated by your race, religion, gender, disability, age, or any other protected class. 

This can include showing pornography, ridiculing disabled people, mocking religions, teasing older workers, making obscene jokes or statements, refusing to let females attend networking events, reprimanding pregnant employees for going to doctor’s appointments, and more.

What Should You Do if You’re a Victim?

Generally, lawyers like Mr. Robertson tailor their legal advice depending on the person’s employment status. That advice can change dramatically if the person is still employed, quit their job, or if they were fired or laid-off. 

If You Are Still Employed 

Generally, hostile work environment lawyers like Mr. Robertson advise people who are still employed to submit a respectful complaint in writing to the appropriate authority at the company. This complaint needs to be written and submitted the right way.

Assuming the company is moderately sophisticated (has HR or someone who is knowledgeable about the legal risks), a correctly written complaint will do a few things:

• Put the company on notice that the bad behavior is occurring, 
• Identify that they have a legal responsibility to stop the bad conduct or comments, 
• Reprimand or terminate the perpetrator, and
• Communicate to the company that you are willing to stand up for yourself.

However, to be effective, this complaint must be written and submitted the correct way. It must be respectful, helpful, concise, and, most importantly, identify the protected characteristic that is motivating the bad behavior in the first place. Mr. Robertson has made an entire video on how to properly complain at work. We highly recommend that you watch it before submitting your complaint.

If you would rather watch this video on YouTube, click here.

Now, if you’ve complained appropriately and the hostile work environment is continuing, lawyers usually recommend that you complain again, in writing. Unless extraordinary circumstances exist, generally, we do not advise that people to quit their job. Quitting the job usually hurts the legal case. For more information on this, read the below section on how much money hostile work environment lawsuits settle for.

If You We’re Fired or “Laid-off”

If you were terminated or “laid-off” after experiencing a hostile work environment, what should you do? Generally, we recommend that people call an attorney as soon as termination has occurred. That is the best time to contact legal counsel for a consultation. That is when you will see if you have a case and what it might be worth. If you feel like we have earned that phone call, please contact us here.

Generally, we do not recommend that people try to negotiate with the company for severance or threaten legal action. We’ve seen too many people with great cases ruin their case by threatening legal action or inadvertently getting sued for extortion. You should find and rely on the advice of a hostile work environment attorney.

If You Quit Your Job 

If you quit your job after you experienced a toxic and unlawful work environment, what are your options? Unfortunately, you have less legal options than if the company fired you. That is why, unless extraordinary circumstances apply, we generally don’t recommend that people quit.

As you’ll see in the below section, if you quit your job, you are not entitled to recover your lost wages. This is a significant blow to the financial prospects of your case. Usually, lost wages are a significant part of the financial claim of an employment case.

Are there any exceptions to this? Yes, if your resignation can be classified as a “constructive termination” you can still collect your lost wages. According to California law, a constructive termination is when, due to the employee having a legally protected characteristic (such as race, religion, disability, age, etc.), the employer makes the working conditions so intolerable that a reasonable person in the employee’s position would have had no reasonable alternative except to resign. 

We will warn you up front, it is very hard to qualify under that standard. In general, it’s very hard to win a constructive termination claim. As a result, it’s sometimes hard for people who quit their job to find a really good lawyer to pursue their case. If you want to know more about constructive termination, watch Mr. Robertson’s detailed YouTube video here.

However, we offer free consultations. So, if extraordinary circumstances apply to your situation, feel free to give us a call to see if you have a case.

How Much Money are Hostile Work Environment Cases Worth?

If you would rather watch this video on YouTube, click here.

Some hostile work environment cases settle for millions of dollars, most settle for much less than that. Why is there such an incredible variation?

There are literally hundreds of factors that go into valuing employment cases. There are big factors like how much money you’ve lost, how awful was the work environment, was there an insurance policy, do you have great evidence in writing, are you in arbitration or court, had the perpetrator done this to other people in the past, and more.

Unfortunately, there are no statistics on hostile work environment settlement value because all settlements are confidential. Plus, every state has different laws and every company approaches settlement differently. Some refuse to settle, some settle early on. 

To get a realistic idea of how much your case might be worth, you need to explain the facts to a good hostile work environment lawyer, hear an objective analysis on liability, and then ask for a realistic damage projection. But even then, no lawyer is perfect. We’ve seen great cases fall apart two years into litigation. We’ve also seen bad cases settle for a lot more than we initially thought. It all depends.

The Deadline to File Your Case

The law has deadlines for everything. These are called “statutes of limitations.” If you are a victim of a hostile work environment, what is the deadline for you to file your case?

In California, you need your lawyer to file your claim with the Department of Fair Employment & Housing (“DFEH”)within one year of the unlawful discriminatory act. After your attorney gets your right-to-sue letter, you have one year in which to file your lawsuit in court. 

However, we recommend that you contact a lawyer right after your termination has taken place. This is because certain situations require you to take action as soon as six months. Also, multiple laws might apply to your case, so multiple statutes of limitations will apply. So, don’t wait, contact a lawyer ASAP.

We are sad to admit it, but we’ve told a lot of people that they cannot pursue their good case because they simply waited too long. Don’t be one of those people.

How Should Employers Deal with a Hostile Work Environment?

Generally, your company is responsible for what happens to its employees at work. Once an employer is aware that harassing conduct may be occurring, it has a responsibility to prevent it from occurring in the future. This includes conducting a fair and unbiased investigation, reprimanding or terminating the bad actor, as well as putting in place procedures and safeguards to prevent it from happening again in the future. Corporations are required to create and maintain a safe work environment for their staff.

What if you complain about a toxic work environment and then the company retaliates against you? Unfortunately, this happens all the time. Retaliation is absolutely prohibited by law.² The law actually says that it is an unlawful employment practice for a company to “discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this [law] or because the person has filed a complaint, testified, or assisted in any proceeding under this [law].”

We recommend that you read our retaliation page if that is happening to you.

If you need a hostile work environment lawyer, contact Branigan as soon as possible.

Other Resources:

• DFEH Complaint Page
• EEOC Page on Harassment
• EEOC Claim Page

Footnotes:

1. CA Government Code § 12940(j) & CACI Jury Instruction 2521A
2. CA Government Code § 12940(h)