In California, bullying is not always illegal

You say it’s a “hostile work environment.” But is that workplace bully breaking the law?

So your boss/supervisor is a jerk. He’s mean, abusive, and he talks down to you. He embarrasses you in front of others and he diminishes your work. You think he may be sabotaging you and intentionally setting you up to fail. Surely he’s breaking the law and you have a case, right?

Not necessarily.

Only Some Types of Harassment and Unfair Treatment are Illegal in California

Generally speaking, bullying in the workplace is not illegal. With limited exceptions, it’s not illegal to be a jerk, it’s not illegal to make your subordinates or coworkers cry, it isn’t even illegal to set people up to fail.

When is such conduct illegal? When it is motivated by discriminatory or retaliatory bias that the law specifically prohibits.

In California, it is illegal to harass or discriminate against workers based on their:

  • race,
  • religion,
  • color,
  • national origin,
  • ancestry,
  • age,
  • physical disability,
  • mental disability,
  • medical condition,
  • genetic information,
  • marital status,
  • sex,
  • gender,
  • gender identity,
  • gender expression,
  • sexual orientation, or
  • military and veteran status.[1]

If the supervisor or co-worker is harassing, discriminating against, or undermining an employee because of the employee’s protected status (or because they are believed to be or are associated with someone else with protected status), then the harasser may be breaking the law.

Similarly, if a supervisor or co-worker is retaliating against a worker for being a whistleblower or opposing illegal conduct, then this retaliation is illegal. (In a recent blog post, I discussed California’s Labor Code 1102.5. In short, Section 1102.5 prohibits an employer from retaliating against a worker for reporting, complaining about, or refusing to engage in violations of local, state, or federal laws.)

Harassing Conduct Must Reach a Certain Level to be Actionable

With respect to harassing conduct, even if it is motivated by illegal intent, to be actionable it must be “sufficiently severe or pervasive ‘to alter the conditions of [the victim’s] employment and create an abusive working environment.'” [2] The plaintiff must prove that the defendant’s conduct would be perceived by a reasonable person (in the same protected group) as hostile or abusive (objective standard). The plaintiff must also prove that she herself considered it to be hostile or abusive (subjective standard).

The California jury instruction on “hostile work environment,” CACI 2524, provides guidance:

Harassing conduct does not create a hostile work environment if it is only occasional, isolated, or trivial. In determining whether the work environment was hostile or abusive, you should consider all the circumstances, including the following:

(a) The nature and severity of the conduct;

(b) How often, and over what period of time, the conduct occurred; and

(c) The circumstances under which the conduct occurred.

This means that offensive conduct that is mild or happened infrequently may not meet the minimum threshold to be found unlawful.

Conclusion

Our laws are not set up to operate as a “civility code.” Just because workplace behavior is unfair, unprofessional, cruel, or even despicable, that does not mean that it is automatically illegal. Instead, workplace bullying and harassment are illegal only when they are based on unlawful motivations and when they rise to a certain level of egregiousness.

* * *

[1] Cal. Gov’t Code Section 12940(a).
[2] Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 129-30.

Photo ©iStock.com/hypestock

When is a “hostile work environment” illegal? was last modified: May 13th, 2017 by Ramit Mizrahi

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