If you are the victim of a hostile work environment at work, you may be wondering how you can prove that you’re suffering a hostile work environment that meets the standard for legally actionable harassment claim.
What is a hostile work environment?
California law and federal both say that harassment and discrimination can create a hostile work environment.
To determine whether harassment violates the law, the following factors are assessed by the factfinder (jury, court, or government agency):
- Frequency and duration of the harassment
- Severity of the harassment
- Whether the harassment is physically threatening or deeply humiliating
- Whether the harassment interferes with an employee’s work performance
- All surrounding circumstances
It is one thing to allege a hostile work environment; it is another to prove it. Below, we discuss how to prove unlawful hostile working conditions that violate equal employment opportunity (EEO) laws.
Step 1. Determine if the behavior is discriminatory
California and federal employment discrimination laws prohibit employers from discriminating against employees and job applicants based on:
- National origin
California law also outlaws discrimination based on sexual orientation, gender identity or gender expression, marital status, or pregnancy, among other protected traits.
- Offensive jokes, ridicule, and mockery
- Use of sexual language or showing sexually suggestive objects or pictures
- Inappropriate touching or physical assaults
- Name-calling, insults, and slurs
- Intentional interference with work performance
Step 2: Determine if the behavior might be severe or pervasive enough, and if the wrongdoer is not a supervisor, report it promptly to human resources
While isolated incidents of harassment are unacceptable, they may not constitute a hostile work environment. There must be an on-going pattern of harassment that is severe or pervasive. The law asks whether a reasonable person in the shoes of the plaintiff would consider the work environment to be hostile, intimidating, offensive, oppressive, or abusive.
You don’t have to prove that your productivity has declined, but you do have to prove that the harassing conduct has altered working conditions so as to make it more difficult to do the job. A single incident can be sufficiently severe or pervasive to constitute harassment – it all depends on the specific circumstances of each employee’s case.
You might be a victim of a hostile work environment if you have endured the treatment described above. If your harasser is a supervisor, in California that makes your employer liable, and taking legal action is your next step. If your harasser is not a supervisor, the law does not give you a remedy against your company right away. You must first inform your company so that it has a chance to take appropriate corrective action. Employers always have a duty to prevent discrimination, including harassment. But human resources may not be aware that an employee has been facing a hostile work environment or another form of harassment. So if the wrongdoer is a peer or other non-supervisor coworker, make sure to first report it to human resources or other management in a position of responsibility. If the company’s investigation and corrective action were deficient, then you have the ability to sue.
Step 3. Hire an employment lawyer
An experienced employment lawyer can help you determine whether your claim is valid and how to proceed. Having an experienced attorney by your side can give you insight into the strength of your claim and help you gather evidence to prove what you have been going through.
Step 4. Gather evidence
Evidence of harassment is key to proving a hostile work environment case. Any e-mails or voicemails with harassing language should be preserved. It is not necessary for harassment to take place exclusively at work. Any behavior that extends from your workplace to your home can qualify as evidence.
You will need to provide a jury with evidence that this was not a single incident. It is also a good idea to keep a personal log of any harassment or threats, with as many details as you can remember. Identify anyone who witnessed these interactions, as they could be called to testify at trial.
Any efforts to notify your employer about the harassment should also be documented. Your complaints to supervisors, human resources, or anyone else, should be documented. Your claim will have more credibility if you can demonstrate that your employer was aware of the details of the allegations, long before you filed a lawsuit. Likewise, remember the friends and family in whom you confided, since they can help corroborate the fact that you complained to them soon after the events.
Step 5. Exhaust Administrative Remedies and File a lawsuit
After your case is investigated, your lawyer will file a mandatory administrative agency complaint. In California, that means submitting detailed written allegations to the Department of Fair Employment & Housing (DFEH) or the U.S. Equal Employment Opportunity Commission (EEOC). This step is required in order to obtain the “right to sue” in court. Once administrative requirements have been satisfied, a lawsuit can be filed against your employer. Under California law, a lawsuit may also be filed against the harasser supervisor. If your lawsuit is successfully resolved, you may recover monetary damages and other remedies for the treatment you received at work.