A good start in any discussion about pursuing a hostile work environment discrimination claim is letting everyone know that, generally and absent special circumstances, your boss, co-workers, employer-owner, vendors, and customers can treat you rudely, demeaning, offensively, and can, generally, treat you like dirt. You have no claim to make with the California Department of Fair Employment and Housing (“DFEH”), U.S. Equal Employment Opportunity Commission (“EEOC”), or California State Personnel Board (“SPB”) solely because your boss, co-workers, owner, vendors, or customers are jerks. None.
Good. I hope that clarified the issue for the large bulk of you. However, as indicated above, there are special circumstances where such bad behavior can give rise to a potential claim. It is where the abhorrent-to-unwanted conduct is directed at you, severely or pervasively, because of your membership in a protected class of individuals, and generally making your work environment un-workable. Specifically, to establish a prima facie hostile work environment claim, a plaintiff must have proof that:
- He/she was subjected to verbal or physical conduct because of his/her inclusion in a protected class of individuals;
- The conduct was unwelcome;
- The conduct was sufficiently severe or pervasive to alter the conditions of his/her employment; and
- The resulting work environment was objectionably offensive and subjectively abusive.
Protected Class of Individuals
You are protected from a hostile work environment created because of your race, color, religion, sex, national origin, age, disability or sexual orientation. Age discrimination is prohibited if you are over 40 years old. Sex harassment applies to both same sex and opposite sex harassment and can apply even if the behavior is not intended to be of a sexual nature. In some cases, retaliatory behavior is considered a prohibited behavior class.
Dangerous work environments can also create a hostile work environment. California employers are required to provide all employees with a safe workplace that is free of known hazards that may lead to death or serious bodily injury.
The victim need not have been the target of the conduct. Rather, the victim could have perceived the inappropriate conduct, and so long as they are member of protected class, can bring suit.
According to the EEOC, unwelcome conduct is conduct where the alleged victim did not solicit or incite the conduct and regarded it as undesirable or offensive. When the conduct involves mistreatment or is racially derogatory in nature, unwelcomeness usually is not an issue, even when the alleged harasser and victim are of the same race. However, employers have argued – successfully – that the derogatory conduct in question was not unwelcome because it was playful banter, and the alleged victim was an active participant. The facts in such cases require careful scrutiny to determine whether the alleged victim was, in fact, a willing participant. However, in the case of Vaughn v. Pool Offshore Co. (683 F.2d 922, 924-25 (5th Cir. 1982)), the court stated:
[The] trial court did not err in finding for employer where plaintiff used racial slurs along with his co-employees, other employees were subjected to the same obnoxious treatment as plaintiff, his co-workers expressed amicable feelings towards him, and plaintiff testified at trial that he did not believe that pranks against him were racially motivated or that he was singled out for abusive treatment.
Sufficiently Severe or Pervasive
The factors to consider when determining whether an environment is sufficiently hostile are “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” (Harris v. Forklift Sys., Inc. (1993) 510 U.S. 17, 21).
Incidents must be more than “episodic”; they must be sufficiently continuous and concerted in order to be deemed pervasive. And severity depends upon the gravity of the threatening or abusive nature of the harassing conduct. Offensive touching or threatening behavior can constitute conduct that is sufficiently severe to create a hostile work environment. In order for a single incident of harassment to be sufficiently severe, generally it will be egregious conduct akin to a physical assault or threat thereof.
Objectively Offensive and Subjectively Abusive
Finally, the alleged victim will have to meet a subjective and objective standard in order to prevail. In other words, the victim must show that:
- he/she subjectively believed the resulting work environment was hostile, abusive, or offensive; and
- a reasonable person in the victim’s position would objectively believe the resulting work environment was hostile, abusive, or offensive.
The perspective of a “reasonable person in the victim’s position” requires consideration of all surrounding circumstances and factors such as, age, gender, work experience, education and life experiences. This two-part test protects only the employees who can demonstrate that they were negatively affected and that a reasonable person would be similarly negatively affected. The test’s intent is to keep those who are unaffected and the unreasonably outraged from securing damages.