Discussing the Workplace Bullying Law in California

Workplace bullying is defined as repeated, degrading, and abusive conduct at work. Examples of bullying include the use of verbal abuse and epithets, intimidating or humiliating behavior, including offensive jokes, interference with the victim’s work that is unrelated to the employer’s legitimate business interests, or cyberbullying.

There is no specific anti-bullying law in California and the conduct is not necessarily illegal. But California employees have the right to sue the bully or their employer if the bullying becomes workplace harassment or discrimination under the California Fair Employment Act (FEHA), the Americans with Disabilities Act (ADA), or Title VII of the Civil Rights Act of 1964.

Workplace bullying may violate harassment or discrimination laws when such behavior is based on a protected category to which the victim belongs. California employers have a duty to ensure that their workplace is free from unlawful bullying.

This means that workers have a legal right to take action either when bullying crosses the line into sexual harassment, or employment discrimination or when it meets the legal definition of non-sexual harassment or discrimination on the basis of protected characteristics like race, religion, national origin, sexual orientation, or physical/mental disability.

Workplace Bullying Defined

The Workplace Bullying Institute (WBI) defines workplace bullying as repeated, health-harming, threatening, intimidating, or humiliating mistreatment of one or more people in the workplace. Workplace bullying behavior is abusive conduct that falls into one of the following three categories:

• Threatening, humiliating, or intimidating workplace behavior;
• Work interference/sabotage of the person’s work performance or
• Verbal harassment.

Usually, a single act is not considered to constitute abusive conduct or count as workplace bullying; instead, the abuse must be a repeated infliction. An exception is a single act of bullying that is particularly severe or harsh, such as verbal or physical conduct that poses a plausible threat to the victim’s personal safety.

Workplace Discrimination vs. Workplace Bullying

California employees have a legal right to be free from workplace harassing behavior on the basis of race, religion, color, national origin, ancestry, physical and mental disabilities, medical condition or genetic information, marital status, sex, gender, gender identity or gender expression, age (over 40), sexual orientation harassment, and military/veteran status.

Only certain characteristics are protected under California’s anti-workplace bullying laws. You cannot file a legal claim simply because a manager or co-worker was ‘rude’ or ‘mean’.

Unlike workplace and anti-bullying laws, harassment on the basis of one of those categories is against California employment law.

Simply put, “hostile work environment” harassment is workplace bullying that is based on one of the protected categories covered under California’s Fair Employment and Housing Act (FEHA).

Hostile Work Environment Harassment

Harassing behavior occurs whenever an employee must work in an offensive environment as a condition of their employment, OR the offensive conduct or behavior is strong enough to create a hostile or intimidating work environment.

It is important to distinguish when such behavior becomes illegal. For example, simple slights, jokes, or minor annoyances that are not extremely offensive may not rise to the level of illegality. In order to rise to the level of illegality, the behavior, conduct, workplace cultures, and/or policies must create a hostile work environment that any other reasonable person could not tolerate.

Harassing Conduct

Harassment itself can take many forms, including verbal abuse (such as threats or derogatory remarks), physical (such as unwanted touching), sexual (such as unwanted sexual advances), and visual (such as offensive posters). And for harassment to rise to the level of a hostile work environment, the bullying must be severe and pervasive. California courts consider such factors as:

• The nature of the conduct;
• How long and how often the harassing conduct lasts;
• The circumstances surrounding the conduct;
• If the conduct was humiliating or threatening.
• And in certain situations, even a one-time incident of bullying can qualify as workplace harassment.

Victims of harassment have the right to file complaints with the California Civil Rights Department (CCRD) and, in many cases, to file a lawsuit in response to the bullying and harassment. They can sue the person who harasses them. They can also sue their employer if the harassment is committed by a supervisor or if the employer handles the unlawful harassment negligently.

Workplace Bullying in California

Workplace bullying in California is not illegal, although certain forms of abusive workplace conduct can be illegal under California law. There is no California statute allowing employees to sue their employers and/or coworkers over cases of workplace bullying.

However, a 2014 California law called AB 2053 does require California employers with 50 or more employees to provide two hours of sexual harassment training to supervisory employees every two years that includes training on prevention of “abusive conduct” (meaning workplace bullying).

Also, employees who are victims of workplace bullying may have a legal right to compensation if the bullying crosses the line into workplace harassment. Workplace bullying on the basis of race or sex may rise to the level of illegal workplace harassment.

Workplace Bullying California

Workplace bullying comes in a wide range of different forms.

Workplace bullying could include anything from overt threats to jokes and teasing. It does not require ill intent on the part of the bully. One person’s ‘jokes’ may be damaging bullying to another reasonable person.

California law considers the severity, pervasiveness, and overall context of the workplace to prove that a hostile work environment existed.

The more severe, more frequent, and more unusual the bullying behavior, the more likely that the victim was subject to a hostile work environment for which California employers can be held legally liable.

Workplace Practices Constituting Unlawful Behavior

The workplace culture of an organization can increase the risk of bullying among its employees. Workplace cultures that can lead to bullying include:

• Highly competitive environments where employees compete with each other,
• High-stress and demanding jobs,
• Layoffs and job insecurity, and
• Disorganization.
• Employer practices can also create an environment in which workplace bullies emerge.
• Examples of employer practices and policies that can lead to workplace bullying include:
• Leadership that takes part in abusive behaviors,
• Lack of strong value statements and policies against workplace abuse,
• Management that does not investigate allegations of abuse,
• Not implementing procedures for holding bad actors accountable,
• Holding some employees accountable for bullying but not others, and
• Failing to provide regular training to employees.

According to a report issued by the Equal Employment Opportunity Commission (EEOC), certain employer practices can also prevent workplace abuse.

Preventing workplace bullying in California requires a commitment to positive corporate values and having systems and procedures in place to hold employees accountable for workplace abuse.

Preventing Workplace Bullying

California also requires that employers provide employee training and education to prevent harassment and abusive conduct.

The law defines abusive conduct as “conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests.” (Cal. Gov. Code § 12950.1).

Abusive conduct can include, for example:

• Verbal abuse (e.g., “derogatory remarks, insults, and epithets”);
• Conduct that is threatening, intimidating, or humiliating to a reasonable person; and
• Sabotaging or undermining another’s work performance.
• The law requires that such abuse occur repeatedly. Unless the abuse is particularly severe, “[a] single act shall not constitute abusive conduct.”

What the California law calls “abusive conduct” is defined in the same terms as workplace bullying.

The Healthy Workplace Campaign

The Healthy Workplace Campaign defines workplace bullying as repeated acts of verbal abuse; threatening, intimidating, or humiliating behaviors; or interference or gratuitous sabotage that prevents another from getting work done.

So while the law does not allow employees to sue an employer for “bullying” exactly, it does require that employers take active steps to prevent conduct that is essentially bullying.

Sexual Harassment and Hostile Work Environment Example

Quid pro quo harassment is a type of workplace sexual harassment and occurs whenever a manager, director, or supervisor requires or requests that an employee exchange sexual favors return for promotions, career advancement, or other types of benefits. This is not limited to oral requests, but also includes non-verbal communication, gestures and/or physical conduct.

Oftentimes, quid pro quo harassment is not as blatantly obvious as a supervisor requesting or demanding sexual favors in exchange for special treatment. Rather, employers or supervisors will misuse company policies, make threats, or violate wage laws to coerce male or female employees into quid pro quo situations. In these instances, supervisors or employers are misusing their position of power to manipulate an employee into performing sexual favors. Common examples may include:

• Withholding pay or benefits, such as vacation or sick time, unless the employee agrees to accept the request for sexual favors;
• Penalizing the employee by reducing work hours or responsibilities for refusing sexual advances;
• Refusing to promote an employee unless they accept the request;
• Threatening the employee with termination or probation unless they accept the request;
• Creating false, negative performance review reports unless the employee accepts the request;
• A supervisor meeting an employee outside of the workplace, making sexual innuendos during the meeting, and then discussing or making suggestions about the job security the employee would enjoy by being in a sexual relationship with the supervisor; OR
• A male supervisor touching his hand on an employee’s knee or thigh during a private meeting and making suggestions or innuendos that the employee’s performance reviews would be better if the employee was “more cooperative.”

What Should I Do if I Experience Workplace Bullying?

Even though workplace bullying is not against the law in California, employees who are the victims of bullying at work DO have options. An experienced California labor and employment attorney can help you determine whether the abuse you are experiencing violates California employment law through a confidential attorney client relationship. Sometimes the problem can be solved by going to Human Resources. Other times, legal action is necessary.

There may be an instance where an employee’s complaints have gone unheard by human resources, have not been properly dealt with, or retaliation has occurred against a harassing individual. Alternatively, the harassing behavior may be stemming from the point of contact that is in charge of regulating this behavior and the employee feels uncomfortable reporting such violations. In those cases, which are not uncommon, the employee should strongly consider meeting with an employment discrimination attorney and/or initiate the administrative complaint process with the appropriate government agencies. Remember, under both federal and state law, administrative remedies must first be exhausted before pursuing any litigation and are subject to strict time constraints.

For example, the bullying you are experiencing may actually meet the legal definition of harassing conduct. California harassment law is broader than many people realize and encompasses abusive behavior not just on the basis of categories like race and sex–but also on the basis of less well-known protected categories like a medical condition, military status, age, and gender expression.

If your complaints about bullying lead to you losing your job, you may have rights under California “wrongful termination” or FEHA retaliation laws. Or if the bullying or unlawful conduct you experience includes wage/hour or overtime violations, you have legal rights with respect to those as well.

Employment Lawyers

Speaking with employment lawyers can be helpful even if the workplace bullying you experience does not activate any specific legal rights given to California employees. The confidentiality and privileges of an attorney-client relationship will protect you from any further workplace bullying

If you or loved ones have been the targets of bullying, physical harassment, sexual harassment, verbal abuse, an abusive work environment, or any other abusive acts and wish to discuss your case confidentially with one of our skilled California labor and employment attorneys, do not hesitate to contact us at Freeburg & Granieri.