Preventing Workplace Harassment, Discrimination, and Retaliation

protected status; 91 (2) the conduct was both subjectively and objectively unwelcome; and (3) the conduct was sufficiently severe or pervasive to alter the conditions of the employee’s working environment so as to create an abusive working environment. 92 Even a single incident of harassing conduct may be sufficient to create a triable issue regarding the existence of a hostile work environment, if the conduct unreasonably interfered with an individual’s work performance ore created an intimidating, hostile, or offensive working environment. 93 The existence of a hostile work environment depends on the “totality” of the circumstances. For that reason, a “stray” discriminatory remark, even if not made directly in the context of an employment decision or uttered by a nondecisionmaker, may be relevant to such assessment, and may be evidence of discrimination. 94 For all of these reasons, employers should promptly address and remedy any seemingly “minor” acts of harassment to prevent and avoid the development of an unlawfully hostile work environment. In California, an employee does not have to be a direct victim of the harassment, or even personally observe the alleged harassment. Instead, employees need only show that they learned about the harassment from a third party. 95 But if the alleged harassment is not directed at the employee, the employee must still be able to show that the harassing conduct so altered working conditions as to make it more difficult for the employee to do the employee’s job. 96 In sexual harassment cases, a work environment can be unlawfully hostile even if no sexual advances are made. 97 For example, situations in which an employee and a supervisor are in a sexual relationship and the employee is receiving job benefits may create a hostile work environment for third party employees who are not involved in the sexual relationship. 98 Of course, unwelcome sexual advances that alter the conditions of employment can also comprise a hostile work environment. 99

The California Supreme Court held that the same conduct can be both harassment and discrimination. Although discrimination and harassment are separate wrongs, some official employment actions taken in furtherance of a supervisor’s managerial role can also have a secondary effect of communicating a hostile message. 100

LCW Practice Advisor

Case Studies on Hostile Work Environment

Zetwick v. County of Yolo 101 Zetwick worked as County correctional officer. She alleged that from approximately 2003 to 2011, Sheriff Prieto hugged her at least 200 times and on one occasion kissed her on, or partially on, the lips, ostensibly to congratulate her on her recent marriage. She also alleged that on numerous occasions she observed him hugging other female employees, but never saw him hug male employees. The Court held that she had put forth sufficient evidence of a sexually hostile environment to take the case to a jury. The Court found that

Preventing Workplace Harassment, Discrimination, and Retaliation ©2019 (s) Liebert Cassidy Whitmore 22