HOSTILE WORK ENVIRONMENT
What Constitutes a Hostile Work Environment?
Often times employees use the term “hostile work environment” to describe treatment by a manager or coworker. In the context of relevant laws, the terms harassment and hostile work environment are effectively the same thing. However, whether a hostile work environment –or harassment– is legally actionable is dependent on whether the treatment is motivated by discriminatory animus toward an employee’s protected status and whether the treatment is severe or pervasive enough to violate applicable discrimination and harassment laws. To be a violation of the law the treatment must be one that is subjectively and objectively offensive. That means that both the victim found the actions hostile or abusive and a reasonable person in their position would have also found the actions hostile or abusive. (McGinest v. GTE Serv. Corp. (9th Cir. 2004) 360 F.3d 1103, 1115.)
The most notable laws prohibiting a hostile work environment or harassment based on protected status are California’s Fair Employment and Housing Act (i.e. "FEHA") and Title VII of the Civil Rights Act of 1964 (i.e. "Title VII"). These laws make it illegal for harassment on the basis of an employee’s “race, religious creed, color, national origin, ancestry, physical disability, mental disability, reproductive health decision making, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or veteran or military status.” (Government Code section 12940; Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028.) Relevant provisions of the aforementioned laws protects an employee, an applicant, an unpaid intern or volunteer, or a person providing services under a contract.
To establish a hostile work environment, an employee must show that: (1) they are a member of a protected class; (2) there were subjected to unwelcome harassment; (3) the harassment was based on their protected status; (4) the harassment unreasonably interfered with their work performance by creating an intimidating, hostile, or offensive work environment; and (5) defendants are liable for the harassment. (Ortiz v. Dameron Hospital Assn. (2019) 37 Cal.App.5th 568, 581 [250 Cal.Rptr.3d 1].)
How Do I Take Action Against my Employer for a Hostile Work Environment?
An employer can generally be held responsible for a hostile work environment or harassment based on a protected category in one of two ways: (1) supervisors created the hostile work environment, or (2) the employer does not take prompt and effective corrective action when it is on notice of a hostile work environment created by any of its employees or nonemployees (such as a customer or vendor.) If you have reported a hostile work environment to your employer should undertake a thorough and unbiased investigation. Once your reports are substantiated the harasser should be disciplined and steps taken to ensure the employee does not face any retaliation. If your employer does not take the appropriate steps in response to your report of a hostile work environment you can take legal action. In addition to your employer, you can also generally hold the individual engaging in harassment responsible by taking legal action against them as well.
Taking legal action of any kind, including action against your employer, can be complicated. There are many steps that need to be followed before a lawsuit is filed, and even more steps must be completed after. These steps may include obtaining a right-to-sue, filing a government claim, and requesting your personnel file, among many others. Although many of these steps can be completed by the employee, often times employees filing the forms on their own behalf may miss deadlines or omit important claims that should have been included. For this reason, it is highly advisable that you consult an attorney that focuses on employment litigation. Our attorneys and employment attorneys will ensure that all of the required and advisable steps are met and will maximize your chance of winning your lawsuit.
What If I Have No Evidence of Harassment?
Many people who suffer from harassment or a hostile work environment fail to take any action against their employer because they believe that there is no evidence of their employer's illegal actions. However, employment lawyers have various ways to obtain the evidence needed for your lawsuit. For example, they can request documents (including emails and other electronic evidence) from your employer, subpoena witnesses to testify, and even take the deposition of the people who discriminated against and harassed you. Even evidence of the falsity that the excuse – or pretextual reason – that your employer gave in an attempt to justify any negative or adverse actions taken against you can help prove your case. California courts have held so-called ‘me too’ evidence, that is, evidence of bias against employees other than the plaintiff in the same protected category, may also be admissible evidence in discrimination and harassment cases. (Meeks v. AutoZone, Inc. (2018) 24 Cal.App.5th 855, 871.) Very often there is more evidence than you might think exists, and this evidence can help strengthen your case.
What Is My Case Worth?
Generally speaking, harassment or hostile work environment claims are intertwined with a claim for discrimination and possibly retaliation. In such cases an employee is generally entitled to: 1) lost earnings; 2) emotional distress; 3) punitive damages. The value of your case depends in large part on these factors, as well as a fourth - liability.
Anyone who experiences discrimination and harassment likely sustained emotional distress as a result - that emotional distress might appear as depression, anxiety, suicidal ideations, headaches, weight changes, and any other physical or mental condition. As with lost earnings damages, it's important to document those damages if you needed and sought treatment from qualified medical providers. If you are depressed as a result, it may be beneficial to see a therapist, psychologist, or psychiatrist. If you have physical symptoms, seeing your primary care physician or a specialist may be warranted. If you cannot find treatment (for example, because you no longer have insurance), an employment attorney will be able to help you get the treatment you need.
In addition to the emotional distress caused by workplace harassment, if you are wrongfully terminated after complaining about a hostile work environment, you are likely entitled to compensation for your lost earnings - that is, the wages and benefits you would have earned had your employer not terminated you. However, you are still required to "mitigate" your lost earnings damages. Mitigation means applying for other jobs and getting another job as soon as possible. It's important to be able to prove that you've attempted to mitigate your damages, so save all job applications, all emails and letters to and from potential employers, and any other documents related to your job search.
Punitive damages, although rare, exist to create a deterrent from other employers from behaving in a similar manner. To obtain punitive damages an employee must show that clear and convincing evidence demonstrates that an employer’s managing agent, director or officer acted with oppression, fraud or malice.
The last factor is liability. Every case has good facts and bad facts. The more good facts there are in your case, the more likely it is that you will win at trial, and the more likely it is that your employer will pay more to settle the case. How do your attorney and your employer's attorney discover good and bad facts? Through the discovery portion of the case, described above. This means that the value of a case can change as both good and bad facts are discovered throughout, and why a good employment lawyer can maximize the value of your case.
Are There Deadlines For Me To File A Lawsuit?
Harassment or hostile work environment cases have numerous deadlines that can come up fast after the offending acts occur so it is important to speak to our attorneys to determine if you want to pursue an action as soon as possible. Generally speaking, violations of California’s Fair Employment and Housing Act involving discrimination, harassment and/or retaliation based on protected characteristics or activity can be generally brought up to three (3) years after the incident occurred. It is important to retain an attorney and file a lawsuit before the statute of limitations – or deadline – expires on any of your potential claims.
How Does the Process of Suing My Employer for a Hostile Work Environment and/or Harassment Work?
Every case is unique, but most cases follow a similar path: First, the employment attorney will collect information from you to draft a demand letter. A demand letter tells your employer that you will be filing a lawsuit against them if they do not agree to settle the case soon. Sometimes the employer will agree to settle, and the case is finished. If the employer refuses to settle (or if they fail to respond at all), your attorneys will promptly file a lawsuit.
The lawsuit (called a "Complaint") tells the employer the basis for your claims - what you allege they did wrong, and the laws under which those actions are illegal. The employer must the file a response, often called an Answer.
After the Complaint and Answer have been filed, both sides begin "discovery." Discovery consists of written questions that each side asks the other, as well as depositions of various people. In a deposition, the attorney for one side asks questions to a person from the other side under penalty of perjury. Once discovery is completed, both sides will typically attempt to resolve the case at mediation. In mediation, a neutral party - called the mediator - will talk to both parties in an attempt to get them to agree. If both sides do, the case is finished. If they don't, the attorneys begin to prepare for trial. While some cases do go to trial, many cases settle beforehand. Cases can take anywhere from a couple of months to three-four years to resolve depending on the unique circumstances in each case.
Our employment attorneys have over a decade of experience fighting for employee rights against the largest companies in the country. Our office handles hostile work environment claims, wrongful termination claims, age, disability, gender, pregnancy and race discrimination and harassment claims, and whistleblower claims, throughout California, including Los Angeles, Orange, Riverside, San Bernardino, San Diego, Imperial, Ventura, Santa Barbara, and Kern counties. If you've been discriminated against, harassed, or retaliated against, or if you've suffered from a hostile work environment, please contact our office for a free consultation.