mathematically precise test in California

2025(Cf. ibid.) Section 12940, subdivision (a) “protects an employee against unlawful discrimination with respect not only to so-called ‘ultimate employment actions’ such as termination or demotion, but also the entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee’s job performance or opportunity for advancement in his or her career.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1053-1054 (Yanowitz).) What constitutes an adverse employment action under FEHA “is not, by its nature, susceptible to a mathematically precise test, and

2021Our Supreme Court has recognized that what constitutes an adverse employment action “is not, by its nature, susceptible to a mathematically precise test,” and, as a result, “the significance of particular types of adverse actions must be evaluated by taking into account the legitimate interests of both the employer and the employee.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1054 .) Yanowitz defined an adverse employment action generally as one that materially affects the 14 terms and conditions of employment.

2008Minor or relatively trivial adverse actions or conduct by employers or fellow employees that, from an objective perspective, are reasonably likely to do no more than anger or upset an employee cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment and are not actionable, but adverse treatment that is reasonably likely to impair a reasonable employee's job performance or prospects for advancement or promotion falls within the reach of the antidiscrimination provisions of [Government Code] section 12940(a)...." ( Yanowitz, supra, 36 Cal.4th at pp. 10

2007There, the Court of Appeal held that instructions on employer retaliation are insufficient without the phrase, "the employer's retaliatory conduct must have been a substantial and material adverse effect on the terms and conditions of ... employment." (Id. at p. 1459, 116 Cal.Rptr.2d 602 .) It noted that without such language, jurors could believe that adverse employment action means "anything that happens to an employee that is not in his or her favor." (Ibid.) A few years later in Yanowitz , our Supreme Court stated: "[T]he determination of what type of adverse treatment ... [suffices] ... i

2025(Miller v. Department of Corrections (2005) 36 Cal.4th 446, 461-462 ; Bailey, supra, 16 Cal.5th at pp. 626-627.) Whether harassment is sufficiently severe or pervasive to create a hostile or abusive work environment is not based on “a mathematically precise test” (Harris v. Forklift Systems, Inc. (1993) 510 U.S. 17, 22 ); instead, we must consider the totality of the circumstances, including the frequency of the conduct, its severity, whether it was physically threatening or humiliating or instead a “mere offensive utterance,” and whether it unreasonably interfered with the employee’s work per

2025Attorney’s Office (2024) 16 Cal.5th 611 , 627 (Bailey).) “ ‘[T]he objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff’s position, considering “all the circumstances.” ’ ” (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 462 ; see also Bailey, at p. 629 [court considers allegations from the perspective of a reasonable person belonging to the same group as the plaintiff].) “Whether a work environment is reasonably perceived as hostile or abusive ‘is not, and by its nature cannot be, a mathematically precise test.’ [Citation.]

2024Accordingly, although an adverse employment action must materially affect the terms, conditions, or privileges of employment to be actionable, the determination of whether a particular action or course of conduct rises to the level of actionable conduct should take into account the unique circumstances of the affected employee as well as the workplace context of the claim.” (Id. at p. 1052.) “[T]he determination of what type of adverse treatment properly should be considered discrimination in the terms, conditions, or privileges of employment is not, by its nature, susceptible to a mathematica

2024Accordingly, although an adverse employment action must materially affect the terms, conditions, or privileges of employment to be actionable, the determination of whether a particular action or course of conduct rises to the level of actionable conduct should take into account the unique circumstances of the affected employee as well as the workplace context of the claim.” (Id. at p. 1052.) “[T]he determination of what type of adverse treatment properly should be considered discrimination in the terms, conditions, or privileges of employment is not, by its nature, susceptible to a mathematica

1998Thomas, Inc. (2d Cir. 1987) 831 F.2d 1184, 1189 , cited with approval in Faragher v. City of Boca Raton, supra, 524 U.S. at p._, fn. 1 [ 118 S.Ct. at p. 2283 , 141 L.Ed.2d at p. 676 .) In its recent decision on sexual harassment, the Supreme Court emphasized that the conduct must be extreme: “ ‘simple teasing,’ . . . offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment.’ ” (Faragher v. City of Boca Raton, supra, 524 U.S. at p._[ 118 S.Ct. at p. 2283 , 141 L.Ed.2d at p. 676 ].) Earlier, in Harris

1998Thomas, Inc. (2d Cir. 1987) 831 F.2d 1184, 1189 , cited with approval in Faragher v. City of Boca Raton, supra, 524 U.S. at p._, fn. 1 [ 118 S.Ct. at p. 2283 , 141 L.Ed.2d at p. 676 .) In its recent decision on sexual harassment, the Supreme Court emphasized that the conduct must be extreme: “ ‘simple teasing,’ . . . offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment.’ ” (Faragher v. City of Boca Raton, supra, 524 U.S. at p._[ 118 S.Ct. at p. 2283 , 141 L.Ed.2d at p. 676 ].) Earlier, in Harris

2017"In order to meet the FEHA standard, an employer's adverse treatment must 'materially affect the terms, conditions, or privileges of employment.' [Citation.] '[T]he determination of whether a particular action or course of conduct rises to the level of actionable conduct should take into account the unique circumstances of the affected employee as well as the workplace context of the claim.' [Citation.] Such a determination 'is not, by its nature, susceptible to a mathematically precise test.' [Citation.] 'Minor or relatively trivial adverse actions or conduct by employers or fellow employees

2017"In order to meet the FEHA standard, an employer's adverse treatment must 'materially affect the terms, conditions, or privileges of employment.' [Citation.] '[T]he determination of whether a particular action or course of conduct rises to the level of actionable conduct should take into account the unique circumstances of the affected employee as well as the workplace context of the claim.' [Citation.] Such a determination 'is not, by its nature, susceptible to a mathematically precise test.' [Citation.] 'Minor or relatively trivial adverse actions or conduct by employers or fellow employees

2017"In order to meet the FEHA standard, an employer's adverse treatment must 'materially affect the terms, conditions, or privileges of employment.' [Citation.] '[T]he determination of whether a particular action or course of conduct rises to the level of actionable conduct should take into account the unique circumstances of the affected employee as well as the workplace context of the claim.' [Citation.] Such a determination 'is not, by its nature, susceptible to a mathematically precise test.' [Citation.] 'Minor or relatively trivial adverse actions or conduct by employers or fellow employees

2017"In order to meet the FEHA standard, an employer's adverse treatment must 'materially affect the terms, conditions, or privileges of employment.' [Citation.] '[T]he determination of whether a particular action or course of conduct rises to the level of actionable conduct should take into account the unique circumstances of the affected employee as well as the workplace context of the claim.' [Citation.] Such a determination 'is not, by its nature, susceptible to a mathematically precise test.' [Citation.] 'Minor or relatively trivial adverse actions or conduct by employers or fellow employees

2008Minor or relatively trivial adverse actions or conduct by employers or fellow employees that, from an objective perspective, are reasonably likely to do no more than anger or upset an employee cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment and are not actionable, but adverse treatment that is reasonably likely to impair a reasonable employee's job performance or prospects for advancement or promotion falls within the reach of the antidiscrimination provisions of [Government Code] section 12940(a)...." ( Yanowitz, supra, 36 Cal.4th at pp. 10

2008Minor or relatively trivial adverse actions or conduct by employers or fellow employees that, from an objective perspective, are reasonably likely to do no more than anger or upset an employee cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment and are not actionable, but adverse treatment that is reasonably likely to impair a reasonable employee's job performance or prospects for advancement or promotion falls within the reach of the antidiscrimination provisions of [Government Code] section 12940(a)...." ( Yanowitz, supra, 36 Cal.4th at pp. 10

2025(Miller v. Department of Corrections (2005) 36 Cal.4th 446, 461-462 ; Bailey, supra, 16 Cal.5th at pp. 626-627.) Whether harassment is sufficiently severe or pervasive to create a hostile or abusive work environment is not based on “a mathematically precise test” (Harris v. Forklift Systems, Inc. (1993) 510 U.S. 17, 22 ); instead, we must consider the totality of the circumstances, including the frequency of the conduct, its severity, whether it was physically threatening or humiliating or instead a “mere offensive utterance,” and whether it unreasonably interfered with the employee’s work per

2024J.) (Aguilar); Miller, supra, 36 Cal.4th at p. 462 .) Whether a work environment is reasonably perceived as hostile or abusive “is not, and by its nature cannot be, a mathematically precise test.” (Harris, supra, 510 U.S. at p. 22 .) “The working environment must be evaluated in light of the totality of the circumstances.” (Miller, supra, 36 Cal.4th at p. 462 , citing Harris, at p. 23.) “ ‘These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an

2025Attorney’s Office (2024) 16 Cal.5th 611 , 627 (Bailey).) A hostile work environment “ ‘must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so.’ ” (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 284 ; see also Bailey, at p. 629 [“The objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff’s position.”].) “Whether a work environment is reasonably perceived as hostile or abusive ‘is not, and by its nature cann

2025(See Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 279 (Lyle) [setting out prima facie requirements for sexual harassment claims under FEHA].) “Whether a work environment is reasonably perceived as hostile or abusive ‘is not, and by its nature cannot be, a mathematically precise test.’ [Citation.] ‘The working environment must be evaluated in light of the totality of the circumstances.’” (Bailey v. San Francisco Dist.

2024J.) (Aguilar); Miller, supra, 36 Cal.4th at p. 462 .) Whether a work environment is reasonably perceived as hostile or abusive “is not, and by its nature cannot be, a mathematically precise test.” (Harris, supra, 510 U.S. at p. 22 .) “The working environment must be evaluated in light of the totality of the circumstances.” (Miller, supra, 36 Cal.4th at p. 462 , citing Harris, at p. 23.) “ ‘These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an

2008Minor or relatively trivial adverse actions or conduct by employers or fellow employees that, from an objective perspective, are reasonably likely to do no more than anger or upset an employee cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment and are not actionable, but adverse treatment that is reasonably likely to impair a reasonable employee's job performance or prospects for advancement or promotion falls within the reach of the antidiscrimination provisions of [Government Code]" section 12940(a)...." ( Yanowitz, supra, 36 Cal.4th at pp. 1

2008Minor or relatively trivial adverse actions or conduct by employers or fellow employees that, from an objective perspective, are reasonably likely to do no more than anger or upset an employee cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment and are not actionable, but adverse treatment that is reasonably likely to impair a reasonable employee's job performance or prospects for advancement or promotion falls within the reach of the antidiscrimination provisions of [Government Code]" section 12940(a)...." ( Yanowitz, supra, 36 Cal.4th at pp. 1

2008Minor or relatively trivial adverse actions or conduct by employers or fellow employees that, from an objective perspective, are reasonably likely to do no more than anger or upset an employee cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment and are not actionable, but adverse treatment that is reasonably likely to impair a reasonable employee's job performance or prospects for advancement or promotion falls within the reach of the antidiscrimination provisions of [Government Code]" section 12940(a)...." ( Yanowitz, supra, 36 Cal.4th at pp. 1

2008Minor or relatively trivial adverse actions or conduct by employers or fellow employees that, from an objective perspective, are reasonably likely to do no more than anger or upset an employee cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment and are not actionable, but adverse treatment that is reasonably likely to impair a reasonable employee's job performance or prospects for advancement or promotion falls within the reach of the antidiscrimination provisions of [Government Code] section 12940(a)...." ( Yanowitz, supra, 36 Cal.4th at pp. 10

2008Minor or relatively trivial adverse actions or conduct by employers or fellow employees that, from an objective perspective, are reasonably likely to do no more than anger or upset an employee cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment and are not actionable, but adverse treatment that is reasonably likely to impair a reasonable employee's job performance or prospects for advancement or promotion falls within the reach of the antidiscrimination provisions of [Government Code] section 12940(a)...." ( Yanowitz, supra, 36 Cal.4th at pp. 10