In California, there are 4 primary types of harassment, each with its own legal definition:
In broad terms, each of these involves unwelcome conduct that is either severe or pervasive. Some conduct can fall into more than one type of harassment. Harassment can even amount to a criminal offense.
What is the legal definition of harassment in California?
Generally, the legal definition of harassment in California is conduct that unwelcome, and that is either severe or pervasive. However, there are 4 specific types of harassment that the law recognizes. Each has its own legal definition of what constitutes harassment.
The 4 types of harassment are:
- civil harassment,
- sexual harassment in the workplace, and
- non-sexual harassment in the workplace.
Depending on the circumstances, the harassing behavior can rise to the level of a criminal offense.
People who have been accused of harassing someone else or who believe that they have suffered harassment should strongly consider consulting with an attorney, as there may be civil and even criminal liability.
Civil harassment law
California’s civil harassment law, California Code of Civil Procedure section 527.6 CCP, has its own legal definition of harassment. Under this law, harassment is any of the following:
- unlawful violence, such as:
- a credible threat of violence, or
- a course of conduct that:
- is knowing and willful,
- is directed at a specific person,
- seriously alarms, annoys, or harasses that person,
- serves no legitimate purpose,
- would cause a reasonable person substantial emotional distress, and
- actually does cause substantial emotional distress to the person.1
A credible threat of violence is any knowing and willful statement or conduct that would put a reasonable person in fear for
- his or her safety, or
- the safety of his or her family.
It also has to serve no legitimate purpose.2
A course of conduct is a series or pattern of acts over a period of time that shows an intent to harass someone. The period of time can be short or long. Those acts can include:
- following or stalking someone,
- making harassing phone calls, or
- sending harassing messages, whether by email, text messages, social media, or in any other way.3
However, constitutionally protected activities, such as political speech, are not included.4 The law also does not apply to relationships that are close. These generally fall under domestic violence laws or stalking.
Victims of conduct that falls within this legal definition of harassment can seek a temporary restraining order (TRO). This order demands the subject stop the harassing conduct. If the subject of the TRO continues to harass the victim, it can amount to the crime of violating a restraining order (Penal Code 273.6 PC).
California’s law against stalking has its own legal definition of harassment. Under state law, stalking has 2 elements:
- the defendant willfully and maliciously harassed or repeatedly followed someone else, and
- the defendant made a credible threat with the intent to put the other person in reasonable fear for his or her safety, or for the safety of his or her immediate family members.5
To constitute harassment under stalking law, there has to be a course of conduct. This requires two or more acts that indicate a continuous purpose.6 The course of conduct has to further no legitimate purpose.7
To amount to harassment, the course of conduct has to be directed at a specific person and seriously:
- torment, or
- terrorize them.8
Stalking is a crime in California. In some cases, it can be a felony that carries more than a year in prison.
Sexual harassment and hostile work environments
Under federal employment law and the California Fair Employment and Housing Act (FEHA), sexual harassment has its own legal definition of what amounts to harassment.
In this context, sexual harassment can take 2 forms:
Quid pro quo sexual harassment happens when a supervisor demands sexual favors for a workplace benefit.10
There are five elements to a establish claim for quid pro quo sexual harassment:
- the victim worked for the defendant, applied for a job with the defendant, or provided services to the defendant,
- a supervisor or another agent for the defendant made unwanted sexual advances or other conduct,
- a favorable working condition was made contingent on those sexual advances, whether by words or by insinuation,
- the worker was harmed by the harassment, and
- the supervisor’s actions were a substantial factor in that harm.11
Unwelcome behavior can also violate sexual harassment laws if it creates a hostile working environment. This can happen if:
- a worker receives unwanted sexual advances, derogatory comments, slurs, or lewd conduct,
- those unwelcome acts are based on his or her sex, and
- the acts are either severe or pervasive enough to alter the conditions of employment.12
In many cases, the harassment has to happen numerous times for it to be pervasive enough. However, isolated incidents of severe conduct, such as sexual assault in the workplace, can suffice.
Victims of workplace harassment can file a discrimination lawsuit against their employer and their harassing supervisor or co-worker.
Non-sexual workplace harassment
Workplace harassment does not have to be sexual in nature. The legal definition of workplace harassment in the state of California also covers:
- national origin,
- sexual orientation,
- gender identity or gender expression,
- medical conditions,
- veteran status, and
- other protected traits.13
To be non-sexual harassment, the conduct still has to amount to a quid pro quo or create a hostile working environment. The vast majority of these non-sexual harassment cases involve hostile working environments.
What are the penalties for harassment?
The penalties for harassment depend on the context. In some cases, it can be a crime. In others, the harasser can get sued and have to pay money damages. In the workplace, the employer can get sued, as well.
Defendants who harass someone else under the definition provided by California’s civil harassment law can be subjected to a restraining order. These are court orders that forbid the subject from harassing the alleged victim. They often require the subject to:
- stay away from the protected party,
- not communicate with the protected party, and
- not go near the protected party’s workplace, home, or school.
It may also require the subject to relinquish any firearms in his or her possession. Other terms and conditions are common, as well.
A civil harassment restraining order can last for up to 5 years.14
If the subject violates the restraining order, it is a crime. Generally, it is a misdemeanor that carries up to:
- $10,000 in fines, and/or
- 1 year in county jail.15
However, the offense becomes a wobbler if it:
- is the subject’s second offense, and
- involved an act of violence.16
Prosecutors have the discretion to pursue wobblers as either a misdemeanor or a felony. If pursued as a felony, a conviction comes with up to:
- $10,000 in fines, and/or
- 3 years in state prison.
Under California law, stalking is penalized as a crime, as well. Like certain violations of a restraining order, stalking is also a wobbler.
If prosecutors pursue misdemeanor charges, a conviction carries up to:
- $1,000 in fines,
- 1 year in county jail, and/or
- misdemeanor (summary) probation.17
If filed as a felony offense, the penalties of a conviction jump up to:
- $1,000 in fines,
- 5 years in state prison, and/or
- felony (formal) probation.18
Stalking is always pursued as a felony offense if either:
- the act of stalking also violated a restraining or protective order, or
- the defendant has a prior conviction for stalking, even if the alleged victims were not the same person.19
For workplace harassment, whether sexual or not, the penalties are civil: The victim can file a harassment lawsuit against his or her harasser, as well as against the employer. These harassment claims would demand compensation for the victim’s losses. In some cases, they can recover punitive damages if the employer, for example, encouraged the conduct or failed to provide sexual harassment training.
- California Code of Civil Procedure 527.6(b) CCP.
- California Code of Civil Procedure 527.6(b)(2) CCP.
- California Code of Civil Procedure 527.6(b)(1) CCP.
- California Criminal Jury Instructions (CALCRIM) No. 1301.
- People v. Norman, 75 Cal.App.4th 1234 (1999).
- CALCRIM No. 1301.
- People v. Norman, supra.
- See, e.g., Holmes v. Petrovich Development Co., 191 Cal.App.4th 1047 (2011).
- See Mogilefsky v. Superior Court, 20 Cal.App.4th 1409 (1993).
- California Civil Jury Instructions (CACI) No. 2520.
- Hughes v. Pair, 46 Cal.4th 1035 (2009).
- See Title VII of the Civil Rights Act of 1964 at 42 USC 2000e-2(a) and Miller v. Department of Corrections, 36 Cal.4th 446 (2005).
- California Code of Civil Procedure 527.6 CCP.
- California Penal Code 273.6 PC.
- California Penal Code 646.9 PC – Stalking.