Under California's Fair Employment and Housing Act, a hostile work environment exists when an employer's sexual harassment is so severe and/or pervasive that it negaively impacts an employee's ability to perform his/her job and results in a hostile, intimidating and/or offensive work environment. When determining whether an environment is hostile for establishing the existence of a sexual harassment claim, courts look at the totality of the circumstances and whether  a reasonable person, in the same circumstances, would find such conduct offensive. A single incident will probably not be considered sexual harassment unless the incident is sufficiently severe (for example, a sexual assault). And a series of incidents, or a combination of events with various levels of severity, will only be considered sexual harassment if the incidents have a negative impact on an employee's job performance. While many factors are taken into account in hostile work environment cases, no single factor is determinative. Examples of harassing behavior that has been held to create a hostile work environment are the posting of pornography in employee cubicles, the consistent telling of obscene jokes and/or stories in an area where all employees can hear them, or sending/forwarding sexually explicit e-mails. It is important to note that simple teasing, rude comments or obnoxious behavior to a certain extent has not been found to constitute sexual harassment. In addition, depending on the circumstances, an employer may be liable for the creation of a hostile work environment when the employer had knowledge of the existence of such harassment but failed to take any corrective action to stop it.

Authored by Stan Grombchevsky of Spray, Gould and Bowers LLP