The Protected Trait – the Dividing Line between Hurtful and Unlawful Conduct

CATEGORY: Blog Posts
CLIENT TYPE: Public Employers
PUBLICATION: California Public Agency Labor & Employment Blog
DATE: Feb 02, 2021

The term “hostile work environment” is used – or rather, misused – so often, that its meaning has become somewhat obscured.  In an office full of fans of the local sports team, the sole fan of its archrival may say that being singled out as such creates a “hostile work environment.”  Or, in a workplace full of fashionistas, the sole person who prefers casual wear may claim that the environment is “toxic” due to coworkers’ focus on fashion.  Have the sole fan of the archrival team and the casual wear fan been subject to “hostile” or “toxic” work environments?

From a legal point of view, the answer is no.

Under both California’s Fair Employment and Housing Act and federal anti-discrimination laws such as Title VII of the Civil Right Act of 1964, the Age Discrimination in Employment Act, and the Americans with Disabilities Act, actionable discrimination and harassment are contingent upon protected classifications.  Both California and federal law protect employees from discrimination and harassment based on age, race, color, national origin and/or ancestry, sex, religion, disability, genetic information, and veteran status.  (Notably, California offers broader protection than federal law, and includes additional protected classifications.)

However, neither California nor federal law confers protected classification status upon support for a specific sports team or preference for casual dress.  Likewise not protected – perhaps surprisingly – are socio-economic status, educational level, and income level.  Many are also taken aback to find that weight is not a protected classification under California or federal law.  Despite lively social media discussions regarding body positivity and the obstacles often faced by individuals as a result of their weight, only San Francisco (San Francisco Police Code section 3301) and Santa Cruz (Ordinance No. 2017-09) expressly prohibit weight discrimination.

To constitute actionable hostile work environment, harassment must be based upon an individual’s protected trait or traits, as defined under applicable law.  If it is not, such conduct does not create a “hostile work environment” in the legal sense.

That does not mean that employees may poke fun at others with impunity.  Discourteous, disrespectful, or rude language targeting a coworker for any reason may well expose an employee to discipline, including dismissal, under an agency’s professionalism and/or civility policy.  However, a “hostile work environment” – in a legal sense – exists only where one’s conduct targets another because of the other’s actual or perceived protected characteristic.

To ensure that employees have a thorough understanding of the laws governing unlawful discrimination, harassment, and retaliation, public agencies should provide all employees mandatory harassment training, and clearly communicate their policies governing conduct in the workplace.

This article was originally published on LCW’s California Public Agency Labor & Employment Blog. You can read other articles and explore our blog by visiting calpublicagencylaboremploymentblog.com.

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