Workplace harassment on the basis of sexual orientation, gender identity, or gender expression is prohibited under California’s Fair Employment and Housing Act.1
This means that employees have a legal right to be free of sexual orientation harassment due to the fact that they are
- transgender, or
The legal definition of harassment in California employment law includes non-sexual harassment on the basis of protected categories such as sexual orientation (as well as race, religion, national origin, disability, etc.). This is the form of workplace harassment known as “hostile work environment” harassment (which is distinct from the better-known “quid pro quo” sexual harassment).2
What is the definition of “sexual orientation/gender identity/gender expression harassment” under California employment law?
Harassment on the basis of sexual orientation, or gender identity or expression, under the FEHA occurs when:
- An employee is the recipient of unwelcome conduct or comments at work;
- This workplace bullying is to some extent based on his/her sexual orientation, gender identity or gender expression; and
- This harassment is either severe or pervasive enough to alter the conditions of employment and create a hostile work environment for the employee.3
The requirement that sexual orientation harassment is “severe or pervasive” means that an employee will not be able to sue the harasser or his/her employer for isolated offensive comments, or simple teasing. California law only provides the right for employees to take action in response to harassment if the harassment either:
- Occurs repeatedly (i.e., is pervasive), or
- Is physically threatening or humiliating (i.e., is severe).4
Who can commit sexual orientation harassment under California labor law?
Anyone in the workplace can commit sexual orientation or gender identity/expression harassment. That is, the person doing the harassing doesn’t have to be the supervisor of the person who is being harassed.5
What can employers do to prevent sexual orientation harassment?
Many California employers are new to the concept of sexual orientation/gender identity harassment. Our California harassment attorneys recommend that all California employers take the following five steps to prevent harassment on the basis of sexual orientation:
- Create a written policy against harassment;
- Communicate the anti-harassment policy to all employees;
- Train supervisors on the anti-harassment policy;
- Post the California Department of Fair Employment and Housing’s (DFEH’s) poster on harassment in a prominent place; and
- Distribute the DFEH brochure on harassment to all employees and supervisors.
Call us for help…
For questions about sexual orientation workplace harassment under California’s Fair Employment and Housing Act, or to discuss your case confidentially with one of our California labor law attorneys, do not hesitate to contact us at Shouse Law Group.
We have local employment law offices 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.
- Government Code 12940 GC — Employers, labor organizations, employment agencies and other persons; unlawful employment practice; exceptions [California sexual orientation harassment law]. (“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: . . . (j)(1) For an employer, labor organization, employment agency, apprenticeship training program or any training program leading to employment, or any other person, because of 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, to harass an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract.”)
- Hughes v. Pair (2009) 46 Cal.4th 1035, 1042. (“The other [form of workplace 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.) . . . 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 [California sexual orientation harassment law], endnote 1 above.