Severe and Pervasive Harassment at Work

What constitutes severe or pervasive harassment that alters working conditions and creates an abusive workplace environment? In California a victim of such harassment must satisfy both an objective and a subjective standard. (See, e.g. Harris v. Forklift Sys. (1993) 510 US 17, 126; Beyda v. City of Los Angeles (1998) 65 Cal.App.4th 511, 518; Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 609.)

Objective Standard: Under the objective standard, the victim must prove that a reasonable person in the victim’s position would have considered the conduct severe or pervasive. For example, if the victim of the harassment is a woman, a reasonable woman standard is used, whereas, if the victim is a man, a reasonable man standard is employed. Race, sexual orientation, age, and physical and/or mental disability of the victim may also be considered. (See, e.g., Kelly-Zurian v. Wohl Shoe Co. (1994) 22 Cal.App.4th 397.)

Subjective Standard: For the subjective standard, the victim must show that he/she actually felt that the harassment was sufficiently severe or pervasive as to interfere with the work environment.

Totality of the Circumstances: The totality of the circumstances must be considered by the finder of fact (i.e., usually the jury) in determining whether the conduct was severe and pervasive enough to constitute hostile environment harassment. (See, Miller v Department of Corrections (2005) 36 Cal.4th 446, 462; Accardi v Superior Court (1993) 17 Cal.App.4th 341.) Among other things, these considerations may include: (1) frequency of the conduct; (2) severity of the conduct; (3) whether the conduct was physically threatening or humiliating or was merely an offensive utterance; and, (4) whether the conduct unreasonably interfered with the victim’s work performance, although the victim is not required to prove that he/she could not perform their job. (Herberg v California Institute of the Arts (2002) 101 Cal.App.4th 142; Etter v Veriflo Corp. (1998) 67 Cal.App.4th 457, 466; Beyda v City of Los Angeles (1998) 65 Cal.App.4th 511, 517.)