Workplace Bullying Law in California

California workplace bullying may become illegal when tied to protected characteristics, harassment, discrimination, retaliation, or severe hostile conduct. Employees may pursue complaints, compensation, reinstatement, and legal action when employers fail to prevent or correct unlawful behavior.

By Douglas Wade, Attorney

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Table of Contents

1. Introduction

2. Which Behaviors Are Illegal Bullying?

3. Typical Instances of Illegal Bullying

4. Liability for Bullying at Work

5. Managing Anti-Bullying Law Violations in California

6. Do Workers Require Legal Counsel?

Introduction

Bullying in the workplace is characterized by persistent, aggressive, and demeaning behavior. Bullying can take many forms, such as cyberbullying, meddling with the victim’s job unconnected to the employer’s official business interests, threatening or humiliating behavior, including inappropriate jokes, or verbal insults and epithets.

In California, there isn’t a specific anti-bullying statute, and the behavior isn’t always prohibited. However, under the California FEHA, the ADA, and the Civil Rights Act (Title VII), employees in California have the right to file a lawsuit against the bully or their company if the bullying turns into workplace discrimination or harassment.

Bullying at work that is motivated by a victim’s status in a protected category may be illegal under harassment or discrimination legislation. California companies have to make sure that there is no illegal bullying occurring at their workplace.

Employees have a legal entitlement to take steps when bullying falls under the legal description of non-sexual discrimination based on protected characteristics, or when it transcends the line into sexual harassment.

Which Behaviors Are Illegal Bullying?

Employers and workers are prohibited by California law from bullying any worker, volunteer, applicant, unpaid intern, or independent contractor, or if the bullying is caused by any of the aforementioned illegal reasons.

The set of protected traits does not specify which behaviors are illegal. It does specify which motivations are. There is no clear definition of “bullying.” Courts use broad language to define the idea.

The most important question in the majority of bullying instances is whether the bullying has made the workplace unpleasant. Bullying or harassment in a hostile workplace is defined as behavior that is serious or widespread enough to foster an abusive workplace.

As the name suggests, hostile work settings are only illegal if the behavior is abusive or objectively unfriendly. A few obnoxious & slightly insulting remarks are insufficient.

The victim has to be offended/distressed by the bullying. A person cannot claim to have worked in a hostile atmosphere if they were emotionally unmoved by it. It has to be shown that:

Their emotional peace at work was shattered by the bullying.
Their capacity to carry out their regular duties was impacted by the bullying.
Their feelings of well-being were compromised and interfered with by the bullying.

In reality, a lot of allegations of hostile work environments entail recurring illegal behavior. However, a sequence is not necessary. According to the law on bullying in the workplace, a single instance of harassing behavior may be sufficient to establish a legitimate complaint regarding a hostile workplace, provided that the behavior unreasonably conflicted with the employee’s ability to perform their job or created an offensive, hostile, or intimidating work environment. This is especially evident when there is a single, serious occurrence. A physical attack or the danger of one is such an example.

When determining whether a workplace is adequately hostile or abusive, California courts consider a number of factors:

The conduct’s severity. Mild behavior is less likely to be illegal than extremely terrible behavior, such as nonconsensual physical contact. The frequency at which a behavior must occur to reach the threshold of “pervasive” behavior decreases with its severity.
The frequency of the action. If they occur frequently enough, even minor actions may be illegal. Frequent instances of improper behavior are more likely to be classified as “all-encompassing” than those that occur once in a while. Some courts in California will even try to figure out how many days the behavior took place.
The conduct’s context. This aspect allows for the examination of all the circumstances underlying the bullying. In certain instances, there could be other factors that make the inappropriate behavior more or less severe. For instance, if the behavior only occurred outside of the job, it might not be as serious.

The case’s facts will have a significant impact on each factor’s weight. Furthermore, even though these elements are useful in determining whether hostile working conditions may exist, the court has the last say.

Gender Doesn’t Matter

Men and women are equally protected under workplace bullying legislation (as well as any additional gender identifications). Therefore, bullying by women is illegal to the same degree as bullying by men. Bullying is illegal even if the victim & the perpetrator are of the same gender.

To put it another way, neither the victim’s nor the bully’s gender matters. Whether the underlying behavior was illegal is the only question.

Typical Instances of Illegal Bullying

It can be challenging to understand the tests that define “bullying.” There is no clear guideline outlining what behavior is severe/widespread. As a result, many courts use the fact trends from earlier instances to analyze an allegation. These illustrations can make it clearer where judges draw the line when deciding what behavior is illegal.

1. Unwanted Physical Contact

The most obvious kind of bullying is usually unwanted physical contact. In the majority of situations, courts have ruled that physical contact is more insulting than verbal abuse or simple words. Therefore, where there was physical contact, a judge is more likely to determine that bullying has been unlawful.

For instance, in Rene vs MGM Grand Hotel, coworkers repeatedly groped a worker’s crotch & anus improperly through his clothing. The court determined that this type of physical behavior constituted an inherently abusive workplace since it was so extreme and widespread. As a result, it was determined that the employee’s allegation of illegal bullying was legitimate.

An employee filed a lawsuit against her employer for bullying in Mokler vs County of Orange, partly because her manager had given her a hug while rubbing her upper body with his arm. The court determined that this brief touching did not amount to a sufficiently severe act of bullying. The employee’s allegation of bullying was unfounded, even though the supervisor’s actions were impolite & insulting.

A court examining comparable facts today would adopt the single-incident test, which was established earlier and is now outlined in the Government Code. For these types of close-call cases, courts sadly lack a clear demarcation. Rather, they consider the frequency and intensity of the touchings.

2. Derogatory Remarks

Derogatory remarks are arguably the most prevalent kind of bullying. These remarks frequently target minorities or women in the workplace. These are slurs, jokes, insults, & other forms of verbal abuse. In California, bullying can be defined as remarks alone, without any physical contact. They typically need to be something more than just offensive, vulgar, or demeaning for them to be actionable. Disparaging remarks must be serious or widespread, as with other allegations of a hostile workplace.

3. Unsuitable Propositions

In the workplace, propositions also happen to be somewhat common. Generally speaking, one request to go out on a date is not considered harassment. However, if an employee receives repeated advances from the same individual or is disciplined for turning them down, there may be a legitimate allegation of harassment.

In one instance, a coworker asked an employee to go on a date three or four times. The employee turned down the request each time. The coworker told her about his sexual desires regarding the employee after some time. The worker reported the coworker’s behavior to HR. The coworker started giving her angry looks multiple times a day.

In that instance, the court decided that the colleague’s initial suggestions might be considered explicit sexual harassment. Similarly, the continuous campaign of gazing at the employee by the coworker may be illegal retaliation. In such a case, an employer may be held accountable for criminal sexual harassment.

Offering employment or advantages in return for sexual actions is another act that is expressly forbidden in California. These threats or offers are illegal quid pro quos, as was already mentioned.

Crucially, offensive statements might be suggested by words or behavior and still be illegal even if they are not explicitly stated. When a manager or other superior suggests that their subordinate will advance in the work environment through sexual behaviors, this can happen.

4. Prejudice and Inequitable Handling

Favoritism motivated by illegal means is prohibited by California law. This type of discrimination can happen in the setting of bullying when managers give rewards to staff members based on their gender, color, religion, or another protected trait.

Generally speaking, sporadic acts of partiality toward a worker with whom the manager is having an extramarital affair would not be considered illegal sexual harassment. 118. However, these circumstances often render it difficult to distinguish between sexual favors driven by a job and consenting sexual behavior.

In one instance, two female employees filed a sexual harassment lawsuit against their company due to the supervisor’s simultaneous sexual relations with three lower-level staff members. The women he was having sex with were promised and given unfair employment benefits by the supervisor. According to the court, this behavior might amount to widespread sexual favoritism that would support a charge of sexual harassment in a hostile workplace.

5. Isolated Occurrences

In each of these situations, it’s essential to keep in mind that isolated instances of inappropriate behavior are typically insufficient to qualify as unlawful bullying in a hostile workplace. This may be the case even if the worker has a number of these instances over several years.

Demonstrating a coordinated routine of bullying that is consistent, regular, or widespread is one method to satisfy the requirement. There are more options besides a pattern. A single instance of harassing behavior may give rise to a triable matter of a hostile work environment under California law if it unjustly interfered with the worker’s duties or established an unpleasant, threatening, or offensive environment; the more serious the incident, the greater the likelihood it will qualify.

That standard is occasionally set extremely high by earlier federal rulings. For instance, in Brooks vs City of San Mateo, the supervisor of an employee touched her naked breast by forcing his hand under her bra and sweater. The worker was unable to effectively go back to her job and needed psychological assistance.

Using federal legislation, the court determined that the incident did not qualify as an enforceable hostile work atmosphere because it only happened once and lasted for a few minutes.

Since then, California’s own harassment legislation has rejected that strategy. The Legislature has stated that a single incident may be adequate and that Brooks will not be used to determine what behavior is severe or widespread enough to be in breach of FEHA. On such facts, a California court using contemporary law might come to a different conclusion.

6. Moderately Offensive Conduct

Many behaviors that most people would deem inappropriate might not be considered illegal harassment or bullying. Casual remarks & simple taunting won’t be considered illegal behavior unless they are severe or continuous.

People’s comfort levels vary when it comes to things like jokes & physical contact. Employers who want to avoid being accused of bullying should generally refrain from permitting any behavior that would be even mildly inappropriate or that they are unsure an employee would find acceptable.

Liability for Bullying at Work

The victims are impacted when bullying takes place at work. According to the law on bullying in the workplace, many victims are entitled to financial compensation from their bullies in order to make up for their suffering.

Many bosses mistakenly think that the only person who has to pay damages to an employee is the one who is directly bullying them. Although bullies may be held personally accountable for their actions, employers are usually also held accountable.

The employer shall be held strictly accountable for the bullying if the aggressor is a manager or employer. This implies that the company may still have to cover the victim’s damages even if it did nothing improper & was not at fault for the bullying.

If the bully is just a coworker or another non-supervisory worker, the employer can only be held accountable in a few situations.

The employer neglected to take prompt & effective corrective action despite knowing about the bullying behavior.

This test basically holds employers accountable if they handled bullying incidents at work carelessly.

Businesses may still be held accountable even when the bully isn’t an employee. However, the degree of control the employer has over the non-employee’s criminal behavior may determine the level of their accountability.

There may be dire repercussions if a judge determines that an individual or company is accountable for bullying. Employers may be liable for the following damages, among others:

Paying back wages, making contributions to the worker’s retirement account, or providing the employee with additional sums intended to make up for any damage caused by the illegal activities.
Compensating the employee for any monetary losses they may have suffered as a result of an unjust termination, being passed over for a promotion, or receiving uneven compensation.
Reimbursing the employee’s legal costs.
Repaying the worker’s expert witness fees or litigation costs.
Reinstating the staff member in their position or, in the event that reinstatement is not possible, paying the employee’s anticipated future earnings.
Interest on sums obtained through litigation.
Punitive damages are intended to penalize the company for its misconduct, as well as compensation for the worker’s emotional distress.

In employment lawsuits, these kinds of losses are most often observed. The employee may be able to pursue alternative remedies if certain factors warrant it.

Managing Anti-Bullying Law Violations in California

Some businesses continue to breach their employees’ rights in spite of the explicit requirements of the law on bullying in the workplace. There are three main choices available to workers who have had their right to be safe from workplace bullying violated:

They can try to settle the conflict amicably with their employer.
To obtain damages, they may file an administrative suit.
They are able to bring legal action.

Employees should know that they may be eligible for punitive damages, compensatory damages, or, in certain situations, reinstatement to their previous position when choosing one of these options.

Naturally, each choice has pros and cons, and in certain circumstances, staff members must attempt all three strategies. Employees should regularly consult with an employment attorney about their case.

Do Workers Require Legal Counsel?

To make a case against their company, employees do not need legal representation. However, having one is always a smart idea.

Few cases are simple, yet legislation can be complicated. Even in cases when the evidence is compelling, a skilled employment law lawyer can occasionally assist by:

Gathering all information that is pertinent to the law on bullying in the workplace,
By persuasively applying the statute to the proof and relevant facts,
Maximizing the employee’s financial damages and avoiding the strategic hazards that many non-legals are unfamiliar with.

Naturally, there is no assurance that an attorney will be able to carry out these tasks. However, there is occasionally a greater chance that employees who handle their legal problems without legal counsel would lose or seriously damage their case as a result of legal errors that an attorney would have prevented.

Legal arguments and sometimes supporting documentation will be required if the employer disputes the worker’s claim, which frequently occurs. This could happen in a courtroom or through an administrative body, sometimes in accordance with intricate legal processes. Having a lawyer who has experience with those tasks can be beneficial.

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Workplace Bullying Law in California

Introduction

Which Behaviors Are Illegal Bullying?

Typical Instances of Illegal Bullying

Liability for Bullying at Work

Managing Anti-Bullying Law Violations in California

Do Workers Require Legal Counsel?

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