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California Employment Lawyers > Blog > Employment > What Do You Need to Prove for a Hostile Work Environment Lawsuit?

What Do You Need to Prove for a Hostile Work Environment Lawsuit?


You don’t have to be personally harassed, to be a victim of sexual harassment. That’s because of what is known as a hostile work environment claim.

If your employer allows an environment to exist that is hostile towards a given gender, race, nationality, religion, or other protected class, the employer can be held liable for creating or allowing a hostile work environment—even if no actual direct insults or derogatory comments were made to you, personally.

Severe and Pervasive

To have a hostile work environment claim, the offensive conduct in the workplace must be severe or pervasive. In other words, a one-time event or sporadic events, may not be enough to justify a hostile work environment.

So what exactly does severe or pervasive actually mean?

Although there is no definitive definition, as a general rule, if conduct in the workplace is ongoing and continuous, and if it is beyond what would be considered normal and appropriate conduct in a work environment, it would be considered a hostile work environment.

Courts will look at a number of factors, to see if a workplace is, in fact, hostile.

Severity and frequency matter a lot; sporadically occurring events that are severe, or continuously recurring events that are marginal, both could qualify as a hostile work environment. But, using racial slurs, even if only one or two times, may be sufficient to constitute a hostile work environment.  Note that the workplace conduct doesn’t need to be both severe and continuous; one or the other will meet the test for a hostile work environment.  It is always a question of fact and what you can prove occurred, when, who witnessed it, and whether or not you reported it to your supervisor or HR.

Severity Matters

Courts do look at severity very closely. A workplace where a supervisor has a picture of scantily clad women hanging on his wall is bad, but not as bad (or severe) as a supervisor who actually is grabbing women’s body parts.

Courts will look at whether the conduct or behavior in the workplace, and the environment being created, interferes with employees’ ability to do their jobs. Obviously, any comments that rise to the level of threats would qualify as well.

Objective and Subjective

When it comes to measuring how severe sexual harassment is, for the purposes of a hostile workplace, courts use both an objective and subjective test.

Subjectively, the court will listen to the employee; does he or she feel insulted, demeaned, threatened, or embarrassed by the behavior in the workplace? Objectively, the behavior in the workplace will be measured against community standards; is what is happening at work something that would make the general public or a reasonable person feel demeaned, insulted or intimidated?

No Protected Class May be Needed

Unlike many forms of workplace harassment, when it comes to a hostile work environment, there are situations where an employee who is not part of a protected class, can still sue for a hostile work environment. In situations where someone’s personal physical safety is threatened, or where there may be unwanted touching, the employee may still have a hostile work environment claim—even if he or she is not part of a protected class.

Is your workplace toxic, intimidating, harassing, or demeaning to you? Contact the San Jose employment lawyers at the Costanzo Law Firm today for help.

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