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The Lyman Firm  |  Information & Resources

When Workplace Harassment Creates An Illegal 
Hostile Work Environment

  • race

  • religious creed,

  • color

  • national origin

  • ancestry

  • physical disability

  • mental disability

  • medical condition

  • genetic information

  • marital status

  • sex

  • gender

  • gender identity

  • gender expression

  • age

  • sexual orientation

  • veteran or military status

 

THE BOTTOM LINE: A hostile work environment is created when harassment in the workplace makes your job more difficult, but only when the harassment is because of your (or your co-workers'): 

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These are called protected characteristics.

THE Law:  California's anti-harassment statute is called the Fair Employment and Housing Act ("FEHA"), and it states: 

 

It is an unlawful employment practice . . . 

 

​(j) For an employer . . . because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or veteran or military status, to harass an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract. Harassment of an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract by an employee, other than an agent or supervisor, shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action. . . . An entity shall take all reasonable steps to prevent harassment from occurring. ​

 

Cal. Gov. Code § 12940(j).  

definitions: So what does it mean that an employer cannot take an adverse action against you because of a protected characteristic?  To understand what's illegal, these terms need to be unpacked:  

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  • Adverse Action: An adverse employment action is anything that negatively affects the terms, conditions, or privileges of your employment. 

 

EXAMPLES: termination, demotion, salary reduction, position change, schedule change, or even courses of conduct that subtly impair your overall job performance or prospects for promotion. 

 

  • Because Of: An adverse employment action is because of your protected characteristic if your protected characteristic (i.e. disability, race, or marital status) is a substantial motivating reason for your employer's decision to take the adverse action.   

 

NOTE: FEHA not only prohibits adverse actions because you possess a characteristic, it also prohibits adverse actions because you associate with someone who has a protected characteristic.  ​

 

  • Protected Characteristics: Protected characteristics are simply things (for lack of a better word) about ourselves, which the law says cannot be the basis for adverse employment decisions.  In California, those characteristics are:       

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  • race

  • religious creed,

  • color

  • national origin

  • ancestry

  • physical disability

  • mental disability

  • medical condition

  • genetic information

  • marital status

  • sex

  • gender

  • gender identity

  • gender expression

  • age

  • sexual orientation

  • veteran or military status

How do you prove discrimination? Courts analyze discrimination cases using a three-step burden-shifting framework known as the McDonnell Douglas test, named after the United States Supreme Court case, McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792.  The three-step framework works like this: 

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  • First, the employee has to present some basic facts from which the court can infer discrimination.  This is called presenting a prima facie case and is a very low bar. 

 

EXAMPLE: An employee shows that they have of a protected characteristic because they are 60 years old (age), that they were qualified to do their job, and that there was something suspicious about the adverse action.  

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  • Second, if the employee establishes a prima facie case, the employer then has to present a legitimate, nondiscriminatory reason for the adverse action. 

 

EXAMPLE: The employer may present evidence showing that the 60 year old employee took two long lunch breaks the week they were fired and argue that the policy violations were the reason for the termination.  

 

  • Third, if the the employer presents a legitimate reason for the adverse action, then the burden shifts back to the employee to present evidence showing that the employer's reason is simply a pretext for illegal discrimination.  In other words, the employee has to show that the employer is lying. 

 

EXAMPLE: The 60 year old employee may present evidence that several 20-30 year old employees took the same long lunches and were not terminated.  

Discrimination cases almost always come down to the last step.  This is because the prima facie bar is so low and an employer can always come up with a supposedly legitimate reason for an adverse action (after all, employers control the paperwork and it is very easy to come up a with a plausible reason to slap onto a termination document).   


Therefore, these cases often come down to whether an employee can show that the employer's "reason" for their adverse action is not the real reason but just a pretext for illegal discrimination.  

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Tips To Document discrimination:  Here are a few things employees can do to document discrimination in the workplace (and one thing employees should not do): 

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  • Save emails, memos, texts, or other correspondences.  If you receive anything in writing showing discriminatory motive (like jokes or comments about your military service, for example), save it.  Print out hard copies of emails or memos and bring them home with you.  Screenshot text messages and save them to your personal cloud or desktop.    

 

  • Complain to HR in writing and save copies of your complaint and the company's response.  Complaining is extremely important in employment cases.  It must be done in writing.  It must be done to the right person, typically this is HR.  It must be clear and professional.  Ask for copies of your complaint, the company's response, and any investigation documents related to your complaint.  Take these copies home with you—do not leave them at work.  

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  • Keep a diary/journal.  If you are experiencing a pattern of discriminatory conduct, keep notes about the incidents.  Include the date, what occurred, by whom, and who witnessed it.  Believe it or not, personal notes taken over time, can be very persuasive to a judge or jury.  

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  • Do not secretly record your boss.  While it may be tempting to try to record your boss' discriminatory comments with your phone, please do not record them.  Depending on the situation, secretly recording your boss can be a crime in California.  You are better off documenting the behavior through the other manners described above.  

This information is meant to provide a brief overview of this legal topic to give employees a general understanding of their rights.  Nothing here is legal advice.  There are many nuances in the law and even more in how the law applies to a given situation.  If you think you are experiencing any unlawful practices at work, and would like legal advice, please contact The Lyman Firm through the link below.  

Consultations are free and you pay nothing upfront to retain The Lyman Firm.  

We perform all services on a contingency fee basis, which means we only charge you a percentage of what you recover at the end of your case.  If you win nothing, you pay nothing. 

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