Severe or Pervasive

Hostile work environment harassment occurs when unwelcomed or unwanted conduct or behavior, based on an employee’s protected class, is directed towards or is observed by an employee, and it is sufficiently severe or pervasive enough to alter the conditions of employment and create a hostile work environment.

Unlawful harassment is often based on a pervasive pattern of conduct. Courts have not often found unlawful harassment when the conduct in question is isolated, sporadic, or trivial.1 A single, unwelcome incident may, however, support a lawsuit depending on severity and effect on the employee’s work environment.2 For example, egregious conduct such as physical assault or groping on a single occasion may amount to harassment, depending on its nature.3

There is no bright line test to determine when conduct crosses the line and becomes unlawful. All circumstances will be examined by the courts, but, again, an employer never wants to wait until conduct is severe and pervasive before taking action.

In deciding if harassment is sufficiently severe or pervasive to create a hostile work environment, courts will look at all the circumstances, such as:4

• The nature of the conduct
• The frequency of the conduct
• The severity of the conduct
• It’s context
• Whether the conduct was physically threatening or humiliating or a mere offensive utterance
• Whether the conduct unreasonably interferes with an employee’s work performance

In addition, an employer can be liable for harassment even when the offensive conduct was not directed at the person alleging the harassment.5 Evidence of harassment directed at coworkers can be used to support an employee’s claim of hostile work environment harassment.6

• A recent court case found that an employee does not need to directly experience harassing conduct if the conduct becomes known and negatively alters the employee’s work environment.7 In the case, a nude photo resembling the plaintiff — but not actually her — was circulated within the Los Angeles Police Department (LAPD) with officers believing it was her and making comments on her body. Even though she lodged a complaint, the LAPD allowed the distribution to go unchecked for months despite repeated requests from her to confirm that distributing the photo violated city and LAPD policies — as the LAPD would ultimately conclude in its investigation.

Based on this conduct, as well as her contemporaneous and credible assertions of a hostile work environment, the court concluded that the plaintiff presented substantial evidence to show she experienced unlawful sexual harassment based upon a hostile work environment.

• Employers never want to wait until conduct is offensive or has become severe or pervasive before taking action. The obligation is to prevent harassing conduct. To wait means to risk liability.

“Reasonable Victim” Standard

To be unlawful, harassment must be both subjectively and objectively offensive.8

Courts use what is called a “reasonable victim” or “reasonable person” standard to determine if, given all the circumstances, the situation constitutes harassment. This means that the determination of whether there was unlawful harassment is based, not only on the subjective perspective of the plaintiff, but also on the perspective of a reasonable person in the alleged victim’s position.9 In other words, an employee who subjectively perceives the workplace as hostile or abusive will not prevail if a reasonable person, considering all the circumstances, would not share the same perception.

For example, in Ellison v. Brady, a sexual harassment case, the Ninth Circuit Court of Appeals decided that to determine if a hostile work environment exists, a court should determine if a “reasonable woman” in the position of the female victim, rather than a “reasonable person,” would consider the conduct sufficiently severe or pervasive to create a hostile working environment. When evaluating the severity and pervasiveness of sexual harassment, courts should focus on the victim’s perspective and not stereotyped notions of acceptable behavior.10

According to the court, a complete understanding of the victim’s view requires an analysis of the different perspectives of men and women and, more importantly, the perspective of the individual who is making the harassment allegations. The court noted that the concept of what a “reasonable victim” would consider sufficiently severe or pervasive to create a hostile work environment can change over time. The standard of what is acceptable behavior should mirror those changes.

Even if the intention is not hostile, if a person in the victim’s position would consider the conduct offensive enough to alter working conditions, there could be basis for a harassment claim.

Hostile Work Environment Cases

The following cases illustrate how courts analyze potentially harassing conduct under the “severe or pervasive” standard in harassment cases involving a variety of conduct, including hugging in the workplace, staring, smelling/sniffing, verbal comments, slurs, offensive images and others.

Example: In Okonowsky v. Garland, a female staff psychologist working for a prison run by the Bureau of Prisons found a coworker’s Instagram page that had hundreds of sexist, racist, antisemitic, homophobic and transphobic memes that referred to the bureau and prison staff and inmates. His Instagram also specifically referenced the staff psychologist, including images resembling her and some posts suggesting violence and sexual contact with her. Okonowsky lodged several complaints that were largely ignored.

Okonowsky filed a lawsuit in federal court, alleging a claim for sex discrimination under Title VII of the Civil Rights Act of 1964. The trial court, considering only five posts that specifically targeted Okonowsky, dismissed her complaint, concluding that they occurred outside the workplace because they were made on the coworker’s personal account.

The Ninth Circuit Court of Appeals found that the trial court erred in only considering five posts and reaffirmed courts must consider the “totality of the circumstances” when analyzing whether a hostile work environment exists — in this case, the hundreds of posts over a three-month period that the coworker directed at Okonowsky and other women because of their sex, as well as non-sexual posts designed to intimidate and retaliate against Okonowsky because of her complaints. It also held that offensive, retaliatory and intimidating conduct on an employee’s personal Instagram page that was directed at the plaintiff could create a hostile work environment.11

Example: In Bailey v. San Francisco District Attorney’s Office, the California Supreme Court held that just one instance of using the N-word epithet toward an African American coworker may be severe enough to be unlawful racial harassment in violation of the FEHA.12 Based on the totality of the circumstances, the court found that a reasonable person in Bailey’s position could find the slur so offensive as to material affect her employment creating a hostile work environment.

Example: In Zetwick v. County of Yolo, a female correctional officer claimed the sheriff, her supervisor, hugged her more than 100 times during a 12-year period and allegedly once kissed her partially on the lips. The Ninth Circuit ruled that in some circumstances, hugging can create a hostile work environment when it is unwelcome and pervasive.13

The court noted that the totality of the circumstances should be considered, including the type, number, frequency and persistence of the hugs described in the lawsuit. There is no precise mathematical test; instead, the jury must consider the “cumulative effect of the conduct at issue” (emphasis in original). Another important factor to consider, according to the court, is the fact the sheriff was her supervisor.

Even though the sheriff’s hugs were “common” in this workplace and hugging of both males and females may have occurred, this does not, according to the court, demonstrate that the sheriff’s hugging was just “ordinary workplace socializing.” Quite to the contrary, a “reasonable juror could find, for example, from the frequency of the hugs, that [the sheriff’s] conduct was out of proportion to ‘ordinary workplace socializing’ and had, instead, become abusive.”

Example: In EEOC v. Prospect Airport Services, the Ninth Circuit Court of Appeals considered allegations from a male employee who complained that he was sexually harassed by a female coworker. The man complained to management, but his employer took virtually no action to stop the unwelcome sexual conduct. His employer fired him when his work performance began to decline.14

The male employee filed a complaint with the EEOC. The Ninth Circuit Court of Appeals found that although the behavior was not particularly severe — it was limited to words, gestures and a photograph, and the woman never touched the man inappropriately — it was pervasive. The court noted that the more pervasive the conduct, the less severe the conduct must be to amount to harassment.

The court also found that the employer’s inadequate response established a question of whether the overtures led to an abusive environment. The court clarified that if the woman had stopped her overtures immediately when the man clearly told her to stop, the EEOC would not have been able to support a case for sexual harassment.

Example: In a disability harassment case, a California appellate court upheld a jury verdict for the employee whose coworkers mocked and mimicked his stutter, as did his supervisor, at least a dozen times over a two-year period. The supervisor would often mock the employee in front of others, sometimes over the facility’s radio system, which could be heard by about 50 employees. The employee found it embarrassing, demeaning, harmful and hurtful. Based on the circumstance, the court said there was sufficient evidence to support the jury’s finding that the harassing conduct in the workplace was both severe and pervasive.15

Example: In a recent case before the Ninth Circuit Court of Appeals, the court dismissed a manicurist’s gender discrimination suit, but remanded his claim of hostile environment harassment to a lower court to be heard by a jury.

The manicurist was asked by a customer for a massage and also propositioned for sex, and reported the incident to his manager. Not only did the manager not take immediate corrective action, he ordered the manicurist to return to the customer to complete a pedicure. The court noted that an employer can create a hostile work environment by failing to take immediate and corrective action in response to a coworker’s or third party’s sexual harassment or racial discrimination claim that the employer knew or should have known about.16

Example: A California court held that staring, even when it is not done in a sexually suggestive manner, may constitute sexual harassment.17 The court considered a case in which a female employee alleged that a male employee stared at her two to 10 times each day, each stare lasting from several seconds to 10 minutes, though never in a sexually suggestive manner. She had earlier reported the same man to her employer for overt sexual harassment, at which time he stopped speaking to her and began a staring campaign. The court held that a violation of gender-based harassment laws could be found based on the pattern of overt sexual harassment, followed by a complaint, followed by a retaliatory act; in this case, the staring.

Example: A leasing manager who worked at an apartment complex for only four days sued her employer for sexual harassment.18 The manager claimed that two maintenance workers repeatedly entered her office, hovered over her head as she sat at the desk, and sniffed her. She alleged that each worker did this about 12 times over the course of her brief period of employment. She complained about the behavior to her supervisor and also to the assistant manager, who told her to “let it slide.” After she was fired, she filed a lawsuit against her employer. The court allowed her case to proceed to trial because “[t]he sniffing and hovering over a woman, by two men, in a small, confined space could be viewed by a reasonable jury as harassment based on [the employee’s] sex.”

Example: In Robinson v. Jacksonville Shipyards Inc., a female shipyard employee sued her employer, claiming that a number of posters and calendars depicting nude or scantily dressed women were consistently allowed to be posted in the shipyard. The court held that sexually oriented pictures created a hostile work environment, and that these posters unlawfully stereotyped women as sex objects.19

In today’s workplace, inappropriate images may be distributed by means other than posters, such as screen savers on computers, inappropriate text messages, or social media posts. Harassment might take different forms than it did in the past.

Social media usage among coworkers can lead to a more casual environment, where employees interact after hours (by posting, tweeting, or viewing and “liking” posts) and share more private information than they typically do in a 9-5 work environment. The nature of social media makes it easier to send images or messages an employee might never feel comfortable doing face-to-face.

Do not make the mistake of thinking that because it happened after hours or on a private phone, you can ignore it. A worker who goes home at night to find offensive posts about them from a coworker is not going to feel comfortable coming to work the next day.

Treat it just as you would any other harassment complaint. Train your workers to understand that online harassment of a coworker after hours violates company policy. For more information, see Liability for Harassment Occurring During Non-Work Hours” in Liability for Harassment.

Example: In another case, Singleton v. U.S. Gypsum, an employee alleged that abusive comments were directed specifically at his sexual identity as a male. The court ruled that this conduct would not have been directed at a female and thus occurred because of the employee’s sex.20

Companies can be held liable for sexual harassment when employees are subjected to slurs based on gender stereotypes. Under California law, sex stereotypes include assumptions about a person’s appearance or behavior, gender roles, gender express or gender identity. Sex stereotypes may also include assumptions about an individual’s ability or inability to perform certain types of work based on myths, social expectations or generalizations about a particular sex.21

Example: In a recent case, the Ninth Circuit Court of Appeals held that employees may be able to support a hostile work environment claim by presenting evidence of regular exposure to violent, misogynistic music — even when the music’s message isn’t directed to a particular individual but is broadly offensive to both men and women.22 Discriminatory behavior, it said, need not be targeted to an individual. A plaintiff can demonstrate a Title VII violation by showing that hostile conduct “pollutes the workplace,” which creates an abusive working environment.

Similarly, the court noted, conduct that is broadly racist (such as graffiti or the use of race-based slurs) can sustain a claim for racial discrimination, even if there is no evidence that the conduct was targeted at a specific employee. In fact, a court may find discriminatory behavior even when racially offensive comments were exchanged between white employees.

Example: The FEHA does not outlaw all coarse and vulgar language; it must meet the hostile work environment test.

In Lyle v. Warner Brothers Television, the California Supreme Court considered if sexual discussions among the writers of the television program Friends exposed a staff member who heard the discussions, as part of her job, to hostile work environment sexual harassment under FEHA. The court rejected the employee’s sexual harassment suit. In doing so, the court announced a valuable guide to understanding the conduct that creates a hostile work environment.

Although the writers engaged in lewd talk and gestures, the talk did not involve and was not aimed at the employee or any other women in the workplace. Therefore, the court argued, no reasonable person could conclude that the particular comments were severe enough or sufficiently frequent to create a work environment hostile or abusive to the employee.23

Does this mean vulgar or sexually coarse language should be allowed? Certainly not. Again, the goal is prevention before you end up with liability. The pervasive use of vulgar, abusive or sexually disparaging language — if it is motivated by gender bias — is still relevant in showing that a discriminatory or hostile work environment exists.

The Lyle case is unique given the facts and circumstances.

Mishandled Complaint Creates Hostile Work Environment

Employers must take all reasonable steps to prevent harassment from occurring, which includes training employees on harassment prevention as well as timely responses to harassment complaints. An employer’s poor response to misconduct may lead to a hostile work environment claim — even if the conduct occurred after-hours and was completely unrelated to work.24

• Ensure that your investigations are fair and unbiased and train managers to avoid siding with either party while an investigation is being conducted.

In one case, a female employee was assaulted by a male coworker with whom she had begun a romantic relationship that had turned violent and led to her rape on three different occasions.

The employer had received three separate complaints about this individual in the past and had taken no disciplinary action. Moreover, the employer knew that this individual was currently being investigated by the state police for the rape of a third party.

The victim in this case sued her employer. She argued that even though the rapes occurred outside of the workplace, the employer’s reactions to those rapes created a hostile work environment. The court agreed that the employer’s actions could support a hostile work environment claim:

• The victim’s supervisors communicated their support of the alleged attacker and their desire that he return to work quickly.
• Her supervisors told her that they wanted to avoid any “stigma hanging over” the coworker should her allegations ultimately be proven false.
• The employer punished her for taking time off, denying her request for paid administrative leave, while offering verbal and financial support to the alleged attacker.
• The employer did not communicate with the victim about the results of its investigation — so as far as the victim knew, the coworker could have returned to work any day.
• The employer shared confidential information with an HR representative who did not have a need to know the information and who lived with the alleged attacker.

The appellate court did not rule that the employee had proved a hostile work environment, only that she had offered sufficient proof to take her claim to trial.

In a recent case, a court found a coworker’s off-duty, nonwork-related sexual conduct was not sufficiently work-related to hold the employer liable, but the employer’s refusal to investigate or address the alleged conduct — along with an HR representative’s jokes about it — was enough for the employee to file a claim for hostile work environment harassment.25

• Recently, the Ninth Circuit Court of Appeals revived an employee’s claims that her employer created a hostile work environment and subjected her to discrimination by demoting and relocating her to a lower-paying position based on her race, gender and ethnicity in violation of Title VII of the Civil Rights Act.

Further, when the employee and her supervisor complained she was being targeted with false complaints and grievances because of her race, gender and national origin, management allegedly ignored the complaints, and then finally held a cursory investigation, basing the decision solely on documents containing information provided by the very individuals that the employee and supervisor alleged to have racial bias against the employee. The employer’s allegedly inadequate investigation was enough to raise a triable issue as to whether the demotion was justified, and the case was allowed to proceed to a jury.26

1. Lyle v. Warner Bros. Television Prods., 38 Cal. 4th 264 (2006)