California’s Fair Employment and Housing Act prohibits harassment in the workplace, whether it be sexual harassment or non-sexual harassment. Victims may be able to sue their employer for substantial monetary damages to cover lost wages and pain and suffering.
Here are five key things to know:
- A common type of workplace harassment is quid pro quo” harassment, where a supervisor asks to trade sexual acts for work benefits.
- The other type of workplace harassment is where bullying or other harassing conduct creates a hostile work environment.
- Employers are legally obligated to prevent and address workplace harassment and may be held liable for their employees’ actions.
- Retaliation against employees who report harassment – such as firings or demotions – is illegal in California.
- Workplace harassment victims can file a complaint with California’s Civil Rights Department or else sue the employer for damages.1
In 2020, the California Department of Fair Employment and Housing – the government agency responsible for enforcing California sexual harassment laws – received almost 8,000 complaints of sexual harassment alone. (This figure doesn’t even include other forms of prohibited harassment.)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, you should be aware of your rights when you 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 do not 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:
- “Quid pro quo” harassment, in which a supervisor asks you to engage in sexual activity as a condition of receiving some form of benefit at work (a promotion, a raise, retention in your job, etc.); and
- “Hostile work environment” harassment, in which severe or pervasive harassing conduct or workplace bullying create an abusive work environment for you.3
Quid pro quo harassment is a form of sexual harassment only. By contrast, a hostile work environment can be based on
- national origin, or
- sexual orientation, to name just a few examples.4
Note that isolated, minor incidents of insensitive behavior do not constitute harassment under Government Code 12940.5
Also note that workplace harassment law also extends not only to current employees but also 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?
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”):
- National origin,
- Immigration retaliation,
- Physical or mental disability,
- Medical condition or genetic information,
- Marital status,
- Gender identity or gender expression,
- Sexual orientation, or
- Military/veteran status.7
3. What if the harassment is not by a supervisor or boss
“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. In contrast, hostile work environment harassment – sexual or otherwise – can be committed by coworkers as well as by bosses.8
In fact, hostile work environment harassment at a workplace can be perpetrated by people who do not even work there, such as
- clients or
- visiting contractors.
This is often referred to as “third-party sexual harassment.” 9
Legal grounds to prove harassment
If a supervisor committed the harassment, then the employer is strictly liable – even if the employer’s behavior was not negligent in any way.10
Though 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.
Demonstrating harassment or a hostile work environment does not require that you suffer financial harm or get terminated from your job. Furthermore, you are not even required to be the direct target of the illegal conduct in question.
Harassment by people with a fiduciary duty
We should also mention that California law, Civil Code 51.9, provides you a right to sue if you are a victim of sexual harassment in professional relationships by someone such as a
- 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?
Our California labor and employment lawyers recommend that you take the following steps if you are facing harassment:
- 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. Even if that does not happen, this step will help you make your case if you eventually need to file a complaint or lawsuit about the harassment.
- File a complaint with the California Civil Rights Department (“CRD”). This step is required before you can file a workplace harassment lawsuit in California.
- Wait for the CRD to issue a “right to sue” notice (this may be done right away, or following an investigation of the harassment complaint by CRD). Once the notice is issued, you or your employment attorney may file a civil workplace harassment lawsuit against the harasser and/or the employer seeking monetary damages, including for lost wages/benefits and emotional distress. It may also be possible to get punitive damages and attorney’s fees.12
CRD 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 CRD.14
Note that California harassment law prohibits workplace retaliation (so-called FEHA retaliation) against you if you complain about harassment or participate in harassment investigations.15 Common forms of retaliation include wrongful termination or wrongful constructive termination.
5. What can employers do to prevent workplace harassment?
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:
- Create a written policy against harassment;
- Communicate the anti-harassment policy to all employees;
- Train supervisors on the anti-harassment policy;
- Post the California Civil Rights Department (CRDs) poster on harassment in a prominent place; and
- Distribute the CRD brochure on harassment to all employees and supervisors.
Not even the most diligent efforts by employers are a guarantee against harassment occurring. Though 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?
Following a workplace harassment allegation, our California workplace harassment attorneys recommend that the employer respond with the following seven measures:
- Listen attentively to the employee’s allegations;
- 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));
- Investigate the complaint thoroughly–preferably with the help of a neutral, knowledgeable third party;
- Draw reasonable, good-faith conclusions based on the results of the investigation;
- Inform both parties of the investigation results, preferably in writing;
- Take appropriate measures for the protection of 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
- Reevaluate the company’s anti-harassment policy or implementation to see if more could be done to prevent future incidents of workplace harassment.
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 CRD 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 protected characteristic 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 their job description and official duties.
- Discrimination, on the other hand, occurs when the responsible party is engaged in activities that are part of their official duties.18
For example, it is harassment when a supervisor makes disparaging remarks to you, because these kinds of remarks are not part of the supervisor’s job. Though it is discrimination when a supervisor favors or disfavors you on prohibited grounds when making work assignments – something that is part of the supervisor’s official duties.
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.
As an employee, you must be given the CRD sexual harassment poster/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:
- Harassing you to the point that you fear for your 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.
- 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. Plus if you and the harasser are not in a close relationship (such as platonic friends, neighbors or strangers), you can apply for a civil harassment restraining order.
Protective orders can require that the alleged harasser either:
- stay away from you,
- move out of your home (“kick-out order”), and/or
- refrain from certain personal conduct such as contacting you over the phone.
Are you the victim of offensive jokes, epithets, slurs, threats, or other forms of harassment at your office?
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).
- Government Code 12940 GC — Employers, labor organizations, employment agencies and other persons; unlawful employment practice; exceptions [California harassment law].
- California Department of Fair Employment and Housing, 2020 Annual Report.
- See Mogilefsky v. Superior Court (1993) 20 Cal.App.4th 1409, 1414–15. See also, for example, Jenson v. Eveleth Taconite Co (8th Cir. 1997) 130 F.3d 1287 (the U.S.’s first sexual harassment class action); Shank v. CRST (Court of Appeals of California, Fourth District, Division Three, 2015) No. G049844 (employer was held liable for not protecting female employee); ANI Chopourian v. Catholic Healthcare West (E.D. Cal. Dec. 20, 2011) Civ. No. S-09-2972 KJM KJN (a harassment victim was awarded $168 million).
- See Government Code 12940 GC — Employers, labor organizations, employment agencies and other persons; unlawful employment practice; exceptions [California harassment law], endnote 1 above. See also CACI 2524 (factors for whether conduct is severe or pervasive: Were threats or physical touching involved? Was the conduct offensive or humiliating? Was the conduct frequent? Did the conduct unreasonably interfere with job performance? What would a reasonable person think of the conduct?).
- Hughes v. Pair (2009) 46 Cal.4th 1035, 1042. (“The other [form of sexual harassment] is sexually harassing conduct that, although not resulting in the loss of or denial of any job benefit, is so “severe or pervasive” as to create a hostile work environment. (Id. at p. 752, 118 S.Ct. 2257.) The terms “quid pro quo” and “hostile work environment” are not in Title VII’s text; they first turned up in academic literature, found their way into federal appellate decisions, and after their mention ***644 by the high court in Meritor, supra, 477 U.S. 57, 106 S.Ct. 2399, “acquired their own [legal] significance.” (Ellerth, supra, at p. 752, 118 S.Ct. 2257.) 678 Under Title VII, sexual harassment is considered “severe or pervasive” only when it “ ‘ “alter[s] the conditions of [the victim’s] employment and create[s] an abusive working environment.” ‘ ” (Clark County School Dist. v. Breeden (2001) 532 U.S. 268, 270, 121 S.Ct. 1508, 149 L.Ed.2d 509.) Taken into account must be the surrounding circumstances, such as 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 employee’s work performance.” ‘ ” (Id. at pp. 270–271, 121 S.Ct. 1508.) Thus, “ ‘simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes’ ” in employment conditions. (Id. at p. 271, 121 S.Ct. 1508; see also Faragher v. Boca Raton (1998) 524 U.S. 775, 787–788, 118 S.Ct. 2275, 141 L.Ed.2d 662.)”)
- Government Code 12940 GC — Employers, labor organizations, employment agencies and other persons; unlawful employment practice; exceptions, endnote 1 above.
- Same. See also Department of Health Services v. Superior Court (2001). 94 Cal. App. 4th 14.
- Government Code 12965 GC — Civil action in name of department; group or class complaint; relief; tolling of statute of limitations. Note that many victims choose to rely on the CRD instead of filing their own lawsuit. If the CRD finds evidence of harassment, it may try to resolve the matter. If they cannot, they may force a lawsuit or public hearing in pursuit of damages, including emotional distress. See, for example, Canal Farms To Pay $150,000 To Settle DFEH Sexual Harassment Lawsuit, DFEH (May 22, 2019). See also Ali Zaslav and Jessica Dean, “Senate passes sweeping overhaul of workplace sexual misconduct law“, CNN (February 10, 2022)(“The bill, called Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, bans forced arbitration in cases involving sexual misconduct and allows victims the option of bringing up the dispute in federal, tribal or state court.”).
- Government Code 12960 GC — Procedure for prevention and elimination of unlawful employment practices; application of article; complaints; limitations. (“(d) No complaint may be filed after the expiration of three years from the date upon which the alleged unlawful practice or refusal to cooperate occurred . . .”); California Assembly Bill 9 (2019).
- Government Code 12965 GC — Civil action in name of department; group or class complaint; relief; tolling of statute of limitations; see also Smith v. BP Lubricants USA Inc. (Cal. App. 4th Dist. May 12, 2021), 2021 Cal. App. LEXIS 395.
- Government Code 12940 GC — Wrongful termination over FEHA-protected activities. (“It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California . . . (h) For any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.”). See also Vines v. O’Reilly Auto Enterprises, LLC, (Court of Appeal of California, Second Appellate District, Division Seven, (January 22, 2022) Cal. App. LEXIS 49. See also Zamora v. Security Industry Specialists, Inc. (2021) 71 Cal. App. 5th 1.
- See FEHA 12940 (K).
- Government Code 12940 GC — Employers, labor organizations, employment agencies and other persons; unlawful employment practice; exceptions . (“(a) For an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.”). See also Title VII of the Civil Rights Act.
- Serri v. Santa Clara University (2014), 226 Cal.App.4th 830, 869-70. (“Harassment is distinguishable from discrimination under the FEHA. “[D]iscrimination refers to bias in the exercise of official actions on behalf of the employer, and harassment refers to bias that is expressed or communicated through interpersonal relations in the workplace.” (Roby v. McKesson, Corp., supra, 47 Cal.4th p. 686) As our high court explained in Reno v. Baird, “Harassment claims are based on a type of conduct that is avoidable and unnecessary to job performance. No supervisory employee needs to use slurs or derogatory drawings, to physically interfere with freedom of movement, to engage in unwanted sexual advances, etc., in order to carry out the legitimate objectives of personnel management. Every supervisory employee can insulate himself or herself from claims of harassment by refraining from such conduct. An individual supervisory employee cannot, however, refrain from engaging in the type of conduct which could later give rise to a discrimination claim. Making personnel decisions is an inherent and unavoidable part of the supervisory function. Without making personnel decisions, a supervisory employee simply cannot perform his or her job duties.””)
- SB 778 (2019), which replaced AB 1825 (2004).