February 11, 2020 - Discrimination

IS TIME UP FOR THE SEVERE OR PERVASIVE STANDARD? HARASSMENT CLAIMS IN 2020 AND BEYOND

By almost any measure, the #MeToo movement has had a remarkable impact on workplace harassment law.  As of today, five states have extended their statutes of limitations for harassment claims, 10 states have enacted various prevention measures, and 13 states have limited or prohibited employers from requiring employees to sign NDAs as a condition of employment or as part of a settlement.[1]

Some state legislatures have sought not only to make it easier to bring harassment claims but also to prove them by eliminating or encouraging removal of the “severe or pervasive” standard for hostile work environment claims. To establish a hostile work environment claim under most U.S. anti-harassment laws, a plaintiff must generally prove that the harassment was “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” This standard focuses on determining whether the unwelcome behavior rises to the level of unlawful harassment and is intended to avoid turning Title VII and other harassment laws into a “general civility code.” Courts have found that simple teasing, offhand comments, or isolated incidents that are not extremely serious or pervasive do not rise to the level of unlawful harassment. 

Critics of the “severe or pervasive” standard claim that it imposes too high of a burden on plaintiffs by focusing on whether the conduct “was really that bad” instead of on whether it “undermined equal opportunity.” These concerns coupled with the concern that courts have dismissed legitimate harassment claims using the “severe or pervasive” standard, lawmakers in several states have set out to redraw the line on what conduct constitutes actionable harassment. So far, New York and California are the only states to have passed laws removing or effectively encouraging removal of the “severe or pervasive” standard. Others may soon follow as lawmakers in several other states are already proposing bills aimed at weakening or eliminating the “severe or pervasive” standard.

California’s Section 12923 Encourages Courts to Apply a More Lenient Standard

Effective January 1, 2019, California Government Code Section 12923 “declare[s]” the California legislature’s “intent” on how courts should review harassment claims under California’s Fair Employment and Housing Act (“FEHA”). Contrary to some reports, Section 12923 is not binding on courts. Instead, it provides non-binding statutory guidance encouraging courts to apply more lenient standards when reviewing harassment claims under FEHA. While the legislature’s purported intent was to ensure that the “severe or pervasive” standard is “fairly applied,” the clear import of Section 12923 is to lower the standard for harassment claims.[2] If courts follow this guidance, plaintiffs will be more likely to establish harassment claims.

  • Section 12923(a) provides that conduct constitutes unlawful harassment if it disrupts the “victim’s emotional tranquility in the workplace” or “otherwise interfere[s] with and undermine[s] the victim’s personal sense of well-being.”[3] Before Section 12923 was enacted, courts reviewing hostile work environment claims under FEHA generally required the alleged conduct to have “interfered with a reasonable employee’s work performance and [to] have seriously affected the psychological well-being of a reasonable employee and that he or she was actually offended.” Aguilar v. Avis Rent A Car Sys., Inc., 21 Cal. 4th 121, 130–31 (1999) (emphasis added). Section 12923(a) suggests that courts should no longer apply this standard. Although Section 12923 encourages courts to apply an objective standard, it is unclear what conduct may be found to objectively disrupt a person’s “emotional tranquility.” It is possible that courts will conclude that such conduct could include offhand comments, isolated incidents of teasing, or various incivilities committed by supervisors, such as “snubbing” or berating a subordinate and using profanity.  
  • Section 12923(b) further encourages courts to disregard the “severe or pervasive” standard by stating that a single incident of harassment is sufficient “if the harassing conduct has unreasonably interfered with the plaintiff’s work performance or created an intimidating, hostile, or offensive working environment. This is a much lower bar than current California precedent, holding that conduct that is not “extreme” must have involved “more than a few isolated incidents” to be unlawful. Lyle v. Warner Bros. Television Prods., 38 Cal. 4th 264, 284 (2006). Notably, while the legislature mostly intended this provision to cover single instances of groping, the guidance might also be applied to single instances of verbal conduct, such as a remark about a woman’s breasts or her perceived lack of intelligence.  Although courts have acknowledged that such conduct is “rude, insulting, and unprofessional,” they generally have not found such isolated conduct to be unlawful.[4]
  • Courts interpreting harassment claims under FEHA have generally considered the context in which the harassing conduct occurs to determine if the conduct is actionable. Even the U.S. Supreme Court found that context matters when it cautioned that “[a] professional football player’s working environment is not severely or pervasively abusive, for example, if the coach smacks him on the buttocks as he heads onto the field—even if the same behavior would reasonably be experienced as abusive by the coach’s secretary (male or female) back at the office.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998). Section 12923(d), however, encourages courts to disregard the type of work environment in which harassment occurs. If courts follow this guidance as well as the guidance to lower the “severe or pervasive” standard, seemingly offhand and benign comments or conduct may become unlawful in any context. For example, saying “OK Boomer” in a joking manner might amount to actionable harassment absent consideration of work context and the “severe or pervasive” standard.  So, too, could kisses on the cheek given to a co-worker at a French-owned Company, despite it being a socially acceptable form of greeting for many Europeans.   
  • Section 12923 also discourages courts from dismissing harassment cases at summary judgment, stating that such summary dispositions are “rarely appropriate” for harassment cases. The California Supreme Court has never adhered to such a blanket standard. Courts have, in fact, granted summary judgment in favor of employers. For example, a California court affirmed summary judgment after holding that “calling a coworker ‘Foxy’ one time, making a single comment that ‘he liked women with meat on their bones,’ and gossiping about two other employees ‘banging’” did not rise to the level of severe or pervasive conduct. Medrano v. Grant Joint Union High Sch. Dist., No. C058663, 2009 WL 2008483, at *7 (Cal. Ct. App. July 13, 2009) (J., Cantil-Sakauye).

So Far, Section 12923 Does Not Appear to Have Changed How Courts Apply the Severe or Pervasive Standard

Though it is still too early to determine whether and how courts will apply Section 12923, early indications are mildly encouraging for defendants. Since Section 12923 took effect over a year ago, California courts deciding hostile work environment claims have either ignored Section 12923[5] or have recognized it with seemingly little to no impact on their ruling.[6] For example, several California state courts ignored Section 12923 and applied the prevailing “severe or pervasive” standard to find the alleged conduct was too “occasional, isolated, sporadic, or trivial” to constitute actionable harassment.[7] While most of these decisions are unpublished (and, thus, non‑precedential), they reflect how some California appellate courts are treating Section 12923. Federal courts that have reviewed harassment claims under FEHA since passage of Section 12923 have recognized the guidance but largely adhered to the “severe or pervasive” standard.[8]

While initial indications appear to show that courts have not given much weight to Section 12923, it will take more time to determine whether the guidance will gain traction. The situation could very well change if more courts consider the guidance and give it credence. It is also entirely possible that California lawmakers, which have been very active in legislating to address workplace harassment, could ultimately amend FEHA to make Section 12923 binding.

New York State Ditches the “Severe or Pervasive” Standard

Rather than “guide” courts on how to apply the “severe or pervasive” standard, the New York state legislature went a step further and scrapped it altogether.[9]  Using the blueprint of New York City’s Human Rights Law (“NYCHRL”), New York amended its New York Human Rights Act to allow hostile work environment claims to be actionable if a plaintiff was merely subjected “to inferior terms, conditions or privileges of employment” because of his or her protected characteristic(s), “regardless of whether it is severe or pervasive.” As some New York courts have noted, the practical upshot of using this lower standard is that “there are [no longer] separate standards for discrimination and harassment claims.” Johnson v Strive E. Harlem Empl. Group, 990 F. Supp. 2d 435, 445 (S.D.N.Y. 2014). New York lawmakers further lowered the bar for proving hostile work environment claims by: (1) requiring defendants to show that the conduct was more than “petty slights or trivial inconveniences” and (2) eliminating the Ellerth/Faragher affirmative defense, providing that the “fact that [an] individual did not make a complaint about . . . harassment to such employee . . . shall not be determinative of whether such employer . . . shall be liable [for such harassment].”

Given that this law recently went into effect in October 2019, it is too early to tell how courts will rule on hostile work environment claims under New York law.  A review of cases under the nearly identical standard under the NYCHRL, however, shows employers will likely face more difficulty defending against harassment claims, even those that involve comments that may have not been actionable under the “severe or pervasive” standard. For example, New York courts have found that an isolated and offhand comment that an openly gay plaintiff’s coat was “too gay” for someone else to wear could be actionable under the NYCHRL.[10]

Will Other Jurisdictions Follow?

Although no state has yet followed the lead of New York and California, lawmakers in other jurisdictions are considering removing the “severe or pervasive” standard from their anti‑harassment laws, and some state regulators are considering employing a more lenient standard in investigating and pursuing hostile work environment claims.

  • Vermont: Vermont’s Human Rights Commission revealed its intent to apply a lesser standard in its investigations when it recommended earlier this year that the state adopt a standard that is “less” than “severe or pervasive.”
  • Minnesota: The Minnesota Supreme Court is expected to issue a decision soon that could dispense with the “severe or pervasive” standard in favor of a more lenient one that favors plaintiffs. In addition, last year, Minnesota’s House of Representatives passed a bill that would have replaced the “severe or pervasive” standard. Although the bill died in the Minnesota Senate, some Minnesota lawmakers are looking to join the ranks of New York and California.
  • Colorado: Just last month, a bill was introduced in Colorado’s legislature aimed at replacing the “severe or pervasive” standard with one defining harassment as something that “undermines a person’s sense of well-being or safety.”

Whether these or other states will ultimately amend their anti-harassment laws to eliminate the “severe or pervasive” standard remains to be seen. On the one hand, unlike other legislative responses to the #MeToo movement, removing the “severe or pervasive” standard is a more abstract, obscure legal question that is less accessible to the lay public and therefore may practically be less likely to make the big splash some state lawmakers hope for in issuing laws to respond to their constituents. On the other hand, the movement toward lowering the standard required for establishing harassment claims may build as lawmakers and regulators continue to be active on workplace harassment issues.

Practical Considerations

With the latest legislative efforts and increasing legal uncertainty about the “severe and pervasive” standard, employers should consider taking proactive measures to avoid harassment claims in their workplace before it becomes an issue. Training is key. As the “front-line” defense, human resources and managers should be adequately trained and equipped to identify and respond to claims about conduct that could be offensive, whether or not it rises to the level of “severe or pervasive.”  Even if the conduct is not unlawful, inappropriate and disrespectful conduct at work should be addressed and not tolerated. 

Prompt and thorough investigations of harassment allegations are also critical. Investigations should be done promptly and by trained professionals who are experienced in handling these types of fact-intensive investigations that often involve difficult credibility determinations. 

Employers should also be mindful that these new standards apply to a hostile work environment claim based on any type of protected trait, not just sex. Employers should continue to monitor developing case law in this area, including new state laws and how state and federal courts are applying or not applying the “severe or pervasive” standard.


[1] See generally National Women’s Law Center, Progress in Advancing Me Too Workplace Reforms in #20STATESBY2020, https://nwlc-ciw49tixgw5lbab.stackpathdns.com/wp-content/uploads/2019/07/20-States-By-2020-report.pdf.

[2] The legislature repeatedly referred to Section 12923 in its committee reports and floor analyses as “non-binding findings and declarations” for the courts’ consideration. See, e.g., SB 1300 (Jackson), Assembly Committee on Judiciary, Mark Stone, Chair, p. 6 (June 26, 2018), file:///C:/Users/CJS9/Downloads/201720180SB1300_Assembly%20Judiciary_%20(1).pdf. And the text and preamble declare what the legislature thinks the law ought to be, not what it is.

[3] The “emotional tranquility” sentence appears to be taken from a 1984 adjudicatory opinion, in which a now-defunct state agency used the “emotional tranquility” language to explain why a plaintiff need not show tangible job detriment to prevail on a hostile-work-environment claim. See DFEH v. Bee Hive Answering Service, FEHC No. 84‑16 (1984). Some California appellate courts have cited this language as part of the “severe or pervasive” standard without appearing to weaken that standard. See, e.g., Jones v. Dep’t of Corr. & Rehab., 152 Cal. App. 4th 1367, 1378-79 (2007).

[4] Brennan v. Townsend & O’Leary Enterprises, Inc., 199 Cal. App. 4th 1336, 1353 (2011) (finding reference to female co-worker as “big-titted, mindless one” was “rude, insulting, and unprofessional” but, ultimately, an “isolated event” and, therefore, not actionable).

[5] See, e.g., Doe v. Dep’t of Corr. & Rehab., 43 Cal. App. 5th 721 (2019) (holding that the following actions were “not so severe as ‘to alter the conditions of [his] employment’ or create an ‘abusive working environment’”: the supervisor criticized the plaintiff’s work during an “uncomfortable meeting,” suspected him of bringing a cell phone into work, ordered a wellness check on him, “pil[ed] work on him when he was supposed to attend a union conference,” and withheld permission to leave early to make a doctor’s appointment); Alvarez v. Lifetouch Portrait Studios, Inc., No. B286910, 2020 WL 61989, at *16 (Cal. Ct. App. Jan. 6, 2020) (“There is no dispute Marino’s conduct caused Alvarez emotional distress, but the evidence does not show behavior that a reasonable person working under the same conditions ‘would [have found] severely hostile or abusive.’”); Viana v. KQED, Inc., No. A151171, 2019 WL 4201086, at *8 (Cal. Ct. App. Sept. 5, 2019) (“Harassment should not be confused with discourtesy or rudeness. . . . [T]he FEHA is not a civility code and [is] not designed to rid the workplace of vulgarity. [T]he law does not exhibit zero tolerance for offensive words and conduct. . . . courts have held an employee generally cannot recover for harassment that is occasional, isolated, sporadic, or trivial; rather, the employee must show a concerted pattern of harassment of a repeated, routine, or a generalized nature.”) (internal citations and quotations omitted).

[6] See, e.g., Ortiz v. Dameron Hosp. Assn., 37 Cal. App. 5th 568, 582 (2019) (citing Section 12923 alongside established precedent on severe or pervasive standard, including that “the plaintiff must prove that the defendant’s conduct would have interfered with a reasonable employee’s work performance and would have seriously affected the psychological well-being of a reasonable employee and that [she] was actually offended”); Hernandez v. Bank of Am., No. B289499, 2019 WL 4621991, at *8 (Cal. Ct. App. Sept. 24, 2019) (citing Section 12923(e)’s language about harassment cases being “rarely appropriate for summary judgment” but principally relying on continuing‑violation doctrine to reverse summary judgment on harassment claim); Arimboanga v. Dameron Hosp. Ass’n, No. C081249, 2019 WL 2537613, at *8 (Cal. Ct. App. June 20, 2019) (including same recitation of the law as Ortiz decision). Most of these cases happen to be in California’s third appellate district.

[7] Viana v. KQED, Inc., No. A151171, 2019 WL 4201086, at *8 (Cal. Ct. App. Sept. 5, 2019); Alvarez v. Lifetouch Portrait Studios, Inc., No. B286910, 2020 WL 61989, at *16 (Cal. Ct. App. Jan. 6, 2020).

[8] See, e.g., Hyams v. CVS Health Corp., No. 18-CV-06271-PJH, 2019 WL 6827292, at *5 (N.D. Cal. Dec. 12, 2019) (applying Sections 12923(b)-(c) regarding a single incident and stray remarks but still finding that referring to African-American plaintiff as “the big black pharmacist” and accusing him of coming across “too aggressively” was insufficiently “severe or pervasive to alter the conditions of his employment and create an abusive work environment”); Loi Ngo v. United Airlines, Inc., No. 19-CV-04277-JCS, 2019 WL 6050832, at *6 (N.D. Cal. Nov. 15, 2019) (finding that the following alleged actions taken by a supervisor could be actionable: calling the plaintiff’s disabled son “retarded” and asking the police to go to the plaintiff’s house to perform a welfare check even though they knew he was on medical leave and without attempting to reach his emergency contact before doing so); Concialdi v. Jacobs Eng’g Grp., No. CV171068FMOGJSX, 2019 WL 3084282, at **10-11 (C.D. Cal. Apr. 29, 2019) (citing Sections 12923(b)-(c) but still applying “severe or pervasive” standard).

[9] A08421, https://nyassembly.gov/leg/?default_fld=&leg_video=&bn=A08421&term=0&Summary=Y&Memo=Y.

[10] Zimmer v. Warner Bros. Pictures, 56 Misc. 3d 1208(A), 63 N.Y.S. 3d 307, 2016 WL 9331304 (N.Y. Sup. Ct. 2016).