“Workplace Harassment” in California – How to File a Lawsuit

California law prohibits harassment in the workplace, whether it be

• sexual harassment or
• non-sexual harassment.

Under the Fair Employment and Housing Act, employees who experience harassment may have the right to sue their employer for damages.

In 2015, the California Department of Fair Employment and Housing  – the government agency responsible for enforcing California sexual harassment laws – received almost 5,000 complaints of sexual harassment alone. (This figure doesn’t even include other forms of prohibited harassment.) ^{1 2}

Complaints and lawsuits alleging sexual and other forms of workplace harassment are common enough in California that every employer needs to be aware of the basics of harassment law. By the same token, California employees should be aware of their rights when they are confronted with a potential harassment case.

Below, our California labor and employment attorneys discuss some of the most frequently asked questions we encounter about California harassment law:

• 1. How does California law define workplace harassment?
• 2. What about harassment other than sexual harassment?
• 3. What if the harassment is not by a supervisor or boss?
• 4. How do I bring a workplace harassment lawsuit?
• 5. What can employers do to prevent workplace harassment?
• 6. How should an employer respond to a complaint?
• 7. What is the difference between discrimination and harassment?
• 8. Is sexual harassment training mandatory in California workplaces?
• 9. Other types of harassment in California

If, after reading this article, you have further questions, please don’t hesitate to contact us at Shouse Law Group.

1. How does California law define workplace harassment?

The legal definition of workplace harassment under California’s Fair Employment and Housing Act (“FEHA”) encompasses two distinct forms of harassing behavior. These are:

1. “Quid pro quo” harassment, in which a supervisor asks an employee to engage in sexual activity as a condition of receiving some form of benefit at work (a promotion, a raise, retention in his/her job, etc.); and
2. “Hostile work environment” harassment, in which harassing conduct and workplace bullying create an abusive work environment for an employee.³

Quid pro quo harassment is a form of sexual harassment only.

By contrast, a hostile work environment does not need to involve sexual harassment. Or have anything to do with sex or gender. Hostile work environment harassment can be based on

• race,
• religion,
• national origin or
• sexual orientation, to name just a few examples.⁴

But in order for someone to have a valid claim of California harassment under the “hostile work environment” theory, they need to be able to show that the harassment was either

•  severe, or
• pervasive.

This means that isolated, minor incidents of insensitive behavior don’t constitute harassment under Government Code 12940.⁵

Below are several examples that illustrate the legal definition of harassment in California labor law:

Example: Ana’s boss has been making it clear for some time that he finds her attractive. One day she asks him for help in dealing with a difficult coworker. He tells her he will help--but only if she will have a drink with him after work. He then proceeds to grope her without her consent.

Ana’s experience of unwelcome touching probably meets the legal definition of quid pro quo sexual harassment.

Example: Tim is a gay man working at a construction company. His coworkers are all straight men. They frequently use homophobic language and epithets around him and make jokes about him wanting to sleep with other men at their work. Several times Tim has found sexually crude drawings left at his desk.

Tim may have a claim for hostile work environment sexual and sexual orientation harassment.

It is also important to note that male and female employees are not the only people in California with a right to file harassment claims. California workplace harassment law also extends to:

• Job applicants;
• Unpaid interns;
• Volunteers; and
• People providing services pursuant to a contract (including independent contractors doing work for an employer).⁶

2. What about harassment other than sexual harassment?

As we discussed above, sexual harassment cases are not the only form of harassment recognized in California’s Fair Employment and Housing Act. Government Code 12940 GC prohibits non-sexual workplace harassment on any of the following bases (“protected classes”):

• Race,
• Religion,
• Color,
• National origin,
• Immigration retaliation,
• Ancestry,
• Physical or mental disability,
• Medical condition or genetic information,
• Marital status,
• Sex,
• Gender,
• Gender identity or gender expression,
• Age,
• Sexual orientation, or
• Military/veteran status.⁷

Example: Rashid is a Muslim high school teacher. The principal at his school makes frequent derogatory comments about Muslims, saying things along the lines of “they are all terrorists” and “they should be rounded up and sent back to where they came from.”

Rashid may have a claim against his employer for hostile work environment harassment on the basis of religion. Any reasonable person in his position would have a difficult time working under those circumstances.

3. What if the harassment is not by a supervisor or boss?

An employee can have a viable harassment claim under California labor and employment law even if the offensive behavior was NOT committed by a supervisor.⁸

“Quid pro quo” sexual harassment – conditioning an employment benefit on sexual favors or activity – usually involves a supervisor or boss who is in a position to arrange employment benefits. But hostile work environment harassment – sexual or otherwise – can be committed by coworkers as well as by bosses.

In fact, hostile work environment harassment at a workplace can be perpetrated by people who don’t even work there, such as

• clients or
• visiting contractors.

This is often referred to as “third-party sexual harassment.” ⁹ 

But the law regarding the responsibility of employers for harassment is different for alleged harassment by supervisors versus alleged harassment by co-workers or other parties.

If harassment is alleged to have been committed by a supervisor, then the employer is strictly liable for the harassment – even if the employer’s behavior was not negligent in any way.¹⁰

But if the harassment was committed by someone other than a supervisor, then the employer is only liable if it behaved negligently with respect to the harassment.¹¹ A negligent employer is one that

• knew or should have known about the harassment, but
• failed to take appropriate corrective action.

We should also mention that California law, Civil Code 51.9, provides a right to sue people who are victims of sexual harassment in professional relationships. This refers to people who are harassed by someone such as a

• doctor,
• attorney,
• teacher,
• therapist, etc.

This law applies only to professional relationships that are not easy to terminate and uses the same definition of sexual harassment as the FEHA.

4. How do I bring a workplace harassment lawsuit?

Experiencing sexual or other forms of unlawful harassment in the workplace can be a profoundly unsettling experience. But California employment law, including the FEHA, means that employees in this position do not need to suffer in silence.

Our California labor and employment lawyers recommend that employees facing harassment take the following steps:

1. Tell someone in the organization about the harassment--either a supervisor or a member of the Human Resources Department. This person may be able to put a stop to the harassment. And even if that does not happen, this step will help the employee make his/her case if s/he eventually needs to file a complaint or lawsuit about the harassment.
2. File a complaint with the California Department of Fair Employment and Housing (“DFEH”). This step is required before one can file a workplace harassment lawsuit in California.
3. Wait for the DFEH to issue a “right to sue” notice (this may be done right away, or following an investigation of the complaint by DFEH). Once the notice is issued, the employee and his/her employment attorney may file a civil lawsuit against the harasser and/or the employer seeking monetary damages, including for emotional distress. It may also be possible to get punitive damages and attorney’s fees.¹²

Employees who are the victims of workplace harassment typically want to know if there are time limits for bringing harassment complaints or lawsuits--and there are.

DFEH complaints generally must be filed within three (3) years after harassment occurs.¹³

Similarly, a civil lawsuit must be filed within one (1) year of receipt of a “right to sue” notice from DFEH.¹⁴

It is important to note that California harassment law also prohibits workplace retaliation (so-called “FEHA retaliation,” which could include wrongful termination or wrongful constructive termination) against employees who complain about harassment or participate in harassment investigations.¹⁵

 5. What can employers do to prevent workplace harassment?

No California employer wants to have a workplace tainted by ongoing harassment. And it is certainly the case that no California employer wants the

• financial burden,
• bad publicity or
• impact on employee morale of a harassment lawsuit.

Our California labor and employment attorneys advise our employer clients to take the following five steps to prevent sexual harassment and other forms of harassment in the workplace:

1. Create a written policy against harassment;
2. Communicate the anti-harassment policy to all employees;
3. Train supervisors on the anti-harassment policy;
4. Post the California Department of Fair Employment and Housing’s (DFEH’s) poster on harassment in a prominent place; and
5. Distribute the DFEH brochure on harassment to all employees and supervisors.

Not even the most diligent efforts by employers are a guarantee against harassment occurring. But measures like the ones listed above are helpful even in the worst-case scenario where harassment does occur – since they can help the employer defend itself against charges of negligence in a potential workplace harassment lawsuit.

6. How should an employer respond to a complaint?

If an employee alleges that workplace harassment has occurred, our California workplace harassment attorneys recommend that the employer respond with the following seven measures:

1. Listen attentively to the employee’s allegations;
2. Take immediate action and reasonable steps pending an investigation (for example, by altering work assignments or schedules so that the complaining employee no longer needs to work with the alleged harasser(s));
3. Investigate the complaint thoroughly--preferably with the help of a neutral, knowledgeable third party;
4. Draw reasonable, good-faith conclusions based on the results of the investigation;
5. Inform both parties of the investigation results, preferably in writing;
6. Take appropriate measures to protect the harassed employee and enforce the anti-harassment policy (for example, terminating or disciplining the harasser, and/or changing work schedules or responsibilities so that the harasser no longer supervises or works with the victim); and
7. Reevaluate the company’s anti-harassment policy or implementation to see if more could be done to prevent future incidents of workplace harassment.

These steps for responding to a workplace harassment complaint sound simple. But they can be incredibly complicated to implement.

In many situations, it makes sense for employers who are confronting allegations of harassment to consult with an experienced labor and employment lawyer immediately for help with responding to the allegations. Waiting to seek legal advice until the incident turns into a DFEH complaint or even a harassment lawsuit may mean that the employer misses valuable opportunities to diffuse the situation.¹⁶

7. What is the difference between discrimination and harassment?

The California Fair Employment and Housing Act also prohibits discrimination in the workplace on the basis of the same categories on which harassment is prohibited: race, sex, religion, national origin, etc.¹⁷

Many California employers and employees are confused about the difference between a claim for workplace discrimination and a claim for workplace harassment.

To put it simply, the difference is this:

• Harassment occurs when the harassing party engages in behavior that is outside his/her job description and official duties.
• Discrimination, on the other hand, occurs when the responsible party is engaged in activities that are part of his/her official duties.¹⁸

For example, it is harassment when a supervisor makes disparaging remarks to an employee, because these kinds of remarks are not part of the supervisor’s job. But it is discrimination when a supervisor favors or disfavors employees on prohibited grounds when making work assignments – something that is part of the supervisor’s official duties.

In practice, employees often experience both discrimination and harassment on the basis of sex or ethnicity. Employers facing complaints or lawsuits for workplace harassment are sometimes sued for discrimination at the same time.

8. Is sexual harassment training mandatory in California workplaces?

California employers with more than five employees must:

• provide two hours of sexual harassment training every two years to managers and supervisors; and
• provide one hour of sexual harassment training every two years to other employees.

Furthermore, this training must include the topics of

• gender identity and expression as well as
• sexual orientation.

All employees must be given the (DFEH) poster or fact sheet. Employers who fail to provide this training face compliance fines.¹⁹

9. Other types of harassment in California

There are many types of harassment that do not necessarily involve the workplace. Oftentimes the harasser can face criminal charges.

For instance,

• Harassing someone to the point that he/she fears for his/her safety qualifies as stalking.
• Emotionally abusing a person who is 65 or older qualifies as elder abuse.
• Harassing a current or former intimate partner through force – or the threatened use of force – is domestic violence.
• And any harassment that turns physical can be charged as assault or battery.

Victims of domestic violence can apply for a domestic violence restraining order against the abuser. And if the harasser and victim are not in a close relationship (such as platonic friends, neighbors or strangers), the victim can apply for a civil harassment restraining order.

Protective orders can require that the alleged harasser either:

1. stay away from the victim,
2. move out of the victim’s home (“kick-out order”), and/or
3. refrain from certain personal conduct such as contacting the victim over the phone.

For questions about the law regarding workplace harassment (sexual and non-sexual) under California’s Fair Employment and Housing Act, or to discuss your case confidentially with one of our skilled California labor and employment attorneys, do not hesitate to contact us at Shouse Law Group.

We have local employment law offices – and create attorney-client relationships – in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities. We appear in both state law courts and federal law courts. Shouse Law Group also practices criminal defense law, and we fight all types of charges including domestic violence, sexual assault, restraining order violations, and more.

Also see the Equal Employment Opportunity Commission (EEOC).

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