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By David Salvin June 8th, 1998

Published in "Orange County Lawyer Magazine", June, 1998

Beginning in the late 1970's and continuing through the 1980's, California Labor Law expanded to include new terms and causes of action for employees. "Wrongful Termination" developed with the passage of the Fair Employment and Housing Act (FEHA) Gov. Code § 12940 et seq. Terms like "sexual harassment", "disparate impact", and "discriminatory intent" became important buzzwords for employment litigators. Additionally, a more subtle term came to light: "hostile work environment". While terms like sexual harassment and disparate impact were quickly defined through case law, little was made of the hostile work environment. While employment attorneys and their clients used the term, it was always as a secondary descriptive term such as "her supervisor repeatedly sexually harassed her, causing her exceptional emotional distress and creating a hostile work environment."

It was not until the mid 80's that the term ‘hostile work environment’ became an actionable cause of action of its own. The seminal California case was Fisher v. San Pedro Peninsula Hospital, (1989) 214 Cal.App.3d 590, 262 Cal.Rptr. 842. In Fisher, the Second District Court of Appeals defined precisely what a hostile work environment was. After the trial court’s granting of the defendant’s demurrer, the Court of Appeals held that under certain circumstances, the creation of an offensive or hostile work environment could violate FEHA whether or not the employee actually suffers any tangible job detriment.

Traditionally, and under FEHA, a plaintiff could show wrongful termination, constructive termination or harassment through affirmative acts to the plaintiff coupled with a demonstrable detrimental impact on his or her job in some respect. Harassment could be founded upon any of the protected classes mentioned under FEHA such as race, color, creed, nationality, gender, etc. However, the archetypal claim for harassment is based upon sexual harassment or discrimination. It’s not surprising then that the first usage and definitions for what a hostile work environment are from a sexual harassment case.

As originally defined, sexual harassment included "quid pro quo" sexual harassment and ‘environmental sexual harassment’. While direct sexual harassment was defined as when submission to sexual conduct is made a condition of concrete employment benefits Fisher 262 Cal.App.3d at 607, environmental sexual harassment was largely overlooked and ill defined.

The issue in Fisher was that the plaintiff was not actually directly sexually harassed herself; and she could not show a concrete detriment to her job. Her claim rested upon the acts of harassment against her co-workers which she witnessed or was aware of. The Fisher Court looked to federal law which held that a plaintiff may establish a violation of title VII (the Federal Anti-Discrimination Provisions) by proving that discrimination based on sex had created a hostile or abusive work environment regardless of whether the plaintiff suffered tangible or economic loss. Meritor Savings Bank v. Vinson, (1986) 477 U.S. 57, 106 S.Ct, 2399.

The Meritor Court looked to the Fair Employment and Housing Commission which reasoned that "Sexual harassment creates a hostile, offensive, oppressive, or intimidating work environment and deprives its victim of her statutory right to work in a place free from discrimination, when the sexually harassing conduct sufficiently offends, humiliates, distresses or intrudes upon its victim, so as to disrupt her emotional tranquility in the workplace, affect her ability to perform her job as usual, or otherwise interferes with and undermines her personal sense of well-being." DFEH v. Bee Hive Answering Service, (1984) FEHC No. 84-16 at pp. 18-19.



 The Fisher Court held that in order to state a prima facie claim for environmental sexual harassment under California’s Fair Employment and Housing Act, the plaintiff must prove (1) that she (or he) belongs to a protected group, (2) that she was subject to unwelcome sexual harassment, (3) that the harassment complained of was based on sex, and (4) that the harassment complained of was sufficiently pervasive so as to alter conditions of employment and create an abusive working environment along with respondeat superior. Fisher 214 Cal.App.3d at 609 citing Meritor Savings 477 U.S. 57. This definition has been repeated by the United States Supreme Court in Harris v. Forklift Systems Inc., (1993) U.S. 17, 21, 114, S.Ct 367,126. See Also Guthrey v. State of California (1998) 63 Cal.App.4th 1108.

With the creation of a foundation for alleging a hostile workplace environment, it remains up to the courts to define what that means in any given circumstance. The U.S. Supreme Court opined that "Whether an environment is hostile or abusive can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity, whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance. Harris v. Forklift Systems, 510 U.S. at p.23.

California Courts have begun to narrow and define what constitutes a hostile workplace by eliminating what does not qualify. The Court in Etter v. Veriflo, (1998) 67 Cal.App.4th 457, 79 Cal.Rptr.2d 33, held that harassment [here in the form of racial harassment] must not be "occasional, isolated, sporadic, or trivial". Again the California Courts looked to federal case law for guidance. The federal case of Faragher v. city of Boca Raton, (1998) 524 U.S. 2275 held that the conduct must be extreme: "simple teasing,...off-hand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment"

Other cases have held that isolated or trivial incidents do not constitute a hostile workplace environment:

Jones v. Flagship, 793 F.2d 714 - a supervisor’s two suggestive remarks and a single proposition of plaintiff;

Rabidue v. Osceola Refining Co, (6th Cir. 1986) 805 F.2d 611 - even though a co-workers was extremely vulgar and crude and in confrontational posture with plaintiff and nude photos were present, the totality of the workplace was not affected.

Scott v. Sears, Roebuck & Co., (7th Cir. 1986) 798 F.2d - isolated winks, suggestive remarks and a co-worker’s single request for a date with the plaintiff did not constitute a hostile work environment.

Dowes v. F.A.A., 775 F.2d 288- defendant engaged in mildly offensive verbal conduct on three occasions and twice touched plaintiff’s hair.

As a general rule, the frequency of conduct which is required to cause a hostile workplace environment is inversely proportionate to the severity of the conduct. Thus, a single very serious incident such as a physical assault or attack may serve to create a hostile environment while constant jibes or innuendo may not.


In marked contrast to a direct harassment or discrimination cause of action, a hostile work environment claim does not require that the plaintiff actually be harassed personally or that they suffer any tangible ill effects from discrimination or harassment. Several courts have found that incidents of sexual harassment directed toward other employees in the work place are relevant to determine if a hostile work environment exists.

The California Appeals Court in Beyda v. City of Los Angeles, (1998) 65 Cal.App.4th 511 looked to a New Jersey Court’s analysis to hold that "The plaintiff’s work environment is affected not only by conduct directed at herself, but also by the treatment of others. A woman’s perception that her work environment is hostile to women will obviously be reinforced if she witnesses the harassment of other female workers." Beyda, 65 Cal.App.4th at 518 citing Lehman v. Toys ‘R’ Us, Inc. (1993) 132 NJ 587. The Beyda Court reasoned that a person may be affected by knowledge that other workers are being sexually harassed in the workplace, even if the individual plaintiff does not personally witness that conduct. While such may be true in sexual harassment cases involving harassment of women, no courts have yet expanded this concept to age, physical disability or religious discrimination.

The Beyda court interprets Fisher to require a "nexus" be shown between the allegedly hostile environment and the plaintiff’s experience in the workplace. Harassment against others in the workplace is only relevant to the plaintiff’s case if she has personal knowledge of it. Unless the plaintiff witnesses the conduct against others, or is otherwise aware of it, that conduct cannot alter the conditions of employment and create an abusive working environment.

While the standard has been established for creation of a hostile work environment through sexual harassment, and direct physical or verbal harassment of the plaintiff or tangible economic damages are not required for the plaintiff to prevail, the numerous and varied holdings of the extremely recent decisions above make it clear that this hostile workplace environment will remain a cause of action in a state of evolution for some time to come.

David J. Salvin maintains a private solo practice in South Orange County. While maintaining a general practice client base, David deals heavily with employment, wrongful termination and labor law.

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