When Is a Hostile Work Environment Illegal Under FEHA?

When A Work Environment Is Really Hostile Enough To Be Considered Sexual Harassment

Virtually all employers in California are prohibited from sexually harassing employees under the California Fair Employment and Housing Act (FEHA). That is because it is illegal for any employer who employs at least one employee to engage in sexual harassment. Illegal sexual harassment can take one of two forms: quid pro quo sexual harassment or a hostile work environment.

Quid pro quo sexual harassment occurs when a supervisor requires a job applicant or employer to submit to unwanted sexual advances by threatening an adverse employment action—like not hiring the employee, demoting her, or firing her—if she does not comply. The harassment can be explicit or implied. Quid pro quo harassment can only be committed by a manager, supervisor, or other employee who has supervisory powers over the victim and who has the ability to take adverse actions if the victim refuses the sexual advances.

However, not all sexual harassment is committed by a supervisor. Often, it is an employee or group of employees engaging in the sexual harassment. This is also illegal under the FEHA if the employee can prove that the sexual harassment creates a hostile work environment.

What Is Required to Prove a Hostile Work Environment Exists?

A hostile work environment is created when the employee’s work environment is made hostile, offensive, oppressive, intimidating, or abusive due to pervasive sexual harassment. Both supervisors and co-workers can create a hostile work environment, and no threat of an adverse employment action is required for the victim to have a claim. To have a hostile work environment claim, the employee must show the following:

• Based on sex. This is a much broader standard than subjecting the employee to unwanted sexual advances and includes conduct not only based on sex, but also gender. This means that the behaviors do not have to be sexual in nature to be considered illegal harassment. For example, construction workers who threw objects at the female construction workers, hid their tools, and otherwise bullied them were found to create a hostile work environment.
• Unwelcome conduct. The conduct must be unwelcome. This is not the same as nonconsensual under the FEHA. The sexual conduct could be unwelcome even if the victim goes along with it because she believes she has no choice in order to keep her job.
• Reasonable person standard. The behavior must be objectively offensive—meaning it would have offended a reasonable person standing in the victim’s shoes. However, this standard takes into consideration the victim’s entire situation. For example, if the victim had been sexually assaulted in the past, this incident would be taken into consideration in determining whether a reasonable person in her situation would have found the behavior complained of offensive.
• Severe or pervasive. The offensive conduct must be so severe or pervasive that it creates a hostile work environment. While one action will generally not be sufficient to establish a claim, some actions—such as sexual assault—could amount to creating a hostile work environment for the employee.

In order to show that the harassment is pervasive, the employee must often demonstrate that there was a pattern of repeated, routine, or generalized harassment. Factors that determine whether the harassment is sufficiently pervasive include:

• The nature of the conduct. The courts will look at how offensive the conduct was. Unwanted touching is generally considered more offensive than unwanted verbal or written abuse. If the conduct is viewed as more egregious, fewer instances of it need to be established for it to be considered pervasive.
• Frequency. How frequently the unwanted behavior occurred will also determine whether it was persuasive. Actions that happened daily or on a weekly basis would be much more likely to be considered persuasive than actions or remarks that occurred once a month or less frequently.
• Number of days. The courts also look at the total number of days the victim was subjected to the offensive actions in deciding whether it was pervasive enough.
• Context. The context of when the offensive conduct will be considered, with some situations mitigating the offensiveness or pervasiveness of the actions.

Examples of a Hostile Work Environment

Many actions can amount to creating a hostile work environment. Some of these include:

• Unwelcome touching.
• Leering.
• Sexually-oriented jokes.
• Cartoons, posters, or drawings of a sexual nature.
• Sexually derogatory comments and other unwanted sexual comments.
• Mistreatment of a class of workers, similar to the female construction workers example discussed above.

If you believe you are the victim of sexual harassment, you have greater protections under the FEHA than federal civil rights laws. For example, the FEHA applies to more employers and gives you the right to more compensation with no caps on the amount of emotional distress or punitive damages you can receive. Do not continue to be the victim of unwanted and illegal sexual harassment. Speak with an Irvine sexual harassment lawyer today at 949-528-4220 to discuss your situation and your legal options.

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