Under the California Fair Employment and Housing Act, employees sometimes may sue their employers for workplace harassment committed by a non-supervisor. The FEHA provides employees with the right to be free from any sexual harassment or non-sexual harassment, regardless of whether it is committed by:
- A supervisor,
- A non-supervisor colleague, or even
- Certain non-employees (such as clients or independent contractors).1
That said, the employer’s liability in a harassment lawsuit depends on:
- who is doing the harassing,
- what kind of harassment is taking place, and
- the work relationship between the harasser and the victim.
As any knowledgeable California employment attorney can tell you, workplace harassment in California is not just about supervisors hitting on or denigrating their subordinates. Anyone in the workplace might be harassed by anyone else in the vicinity, including non-employees–even in cyberspace.
Below, our California labor and employment lawyers answer the following frequently asked questions about supervisor & non-supervisor workplace harassment under the Fair Employment and Housing Act (FEHA):
- 1. What is the Law Regarding Workplace Harassment by a Supervisor?
- 2. Can Employees Sue for Workplace Harassment by Non-Supervisors in California?
- 3. Can Employees Sue under California Employment Law for Harassment by a Customer or Client?
If, after reading this article, you have further questions, we invite you to contact us at Shouse Law Group.
1. What is the Law Regarding Workplace Harassment by a Supervisor?
Harassment by a supervisor is what most people think of first when they hear about workplace harassment. Supervisor harassment under the FEHA can consist of either:
- “Quid pro quo” sexual harassment, in which a supervisor demands sexual favors or behavior in exchange for employee benefits; or
- “Hostile work environment” harassment, which can be either sexual or non-sexual (e.g., based on race, religion, age, sexual orientation, etc.), in which a supervisor’s severe or pervasive abusive behavior leads to an altered work environment for a harassed employee.2
The key point to know about either type of harassment by a supervisor in California is this: if the harassment is perpetrated by the victim’s supervisor, or by someone in successively higher authority (for example, by the supervisor’s supervisor), then the employer is strictly liable for the harassment.
This means that, if an employee brings a harassment lawsuit, an employer can be liable for damages for the supervisor’s harassment regardless of whether it acted reasonably to prevent such harassment from occurring.3
Example: Rob is the principal of a public school. Kelly is a teacher at that same school. Rob tells Kelly that he will arrange for her to teach the “gifted” class at the school–known for being an easier and more enjoyable teaching assignment than most–if she will have sex with him.
The public school district that employs Rob and Kelly has gone out of its way to train employers and employees on how to avoid harassment. When Kelly tells the superintendent about Rob’s proposal, Rob is immediately put on leave from his position.
Still, because Rob is a supervisor, the district will be liable to Kelly for damages in a lawsuit if she decides to sue over Rob’s quid pro quo sexual harassment.
Even so, a California employer can still limit (but not entirely avoid) damages in a harassment lawsuit by showing:
- The employer took reasonable measures and procedures to prevent and correct harassment;
- The harassment victim unreasonably failed to take advantage of these measures; and
- Reasonable use of the employer’s procedures would have prevented some of the harm.4
1.1. What is the definition of a “supervisor” under California harassment law?
In California, the definition of supervisor under the FEHA’s harassment provisions is particularly broad. It includes any person who, using independent judgment:
- has authority to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees;
- has the responsibility to direct other employees,
- has the responsibility to adjust other employees’ grievances; or
- can effectively recommend such actions.5
Under this definition, it is likely that “lead workers” or “forepersons” would count as supervisors, even if they can only assign tasks and are not responsible or accountable for the employees’ work product.6
2. Can Employees Sue for Workplace Harassment by Non-Supervisors?
California employees may still sue their employers under the Fair Employment and Housing Act if they experience harassment at the hands of a fellow employee who is not a supervisor. (This will mean hostile work environment harassment rather than quid pro quo sexual harassment.)
However, if the alleged harasser is not a supervisor, the employer is only liable in a workplace harassment suit if the employer was negligent. This means that both of the following must be true:
- The employer knew or should have known that harassment was occurring; and
- The employer failed to take immediate and appropriate corrective action.7
This type of case will revolve around whether the employer took measures to prevent harassment in the workplace and how the employer responded to complaints or signs that harassment was occurring.
To the extent that the harassment may have been apparent, especially to anyone in authority, the employer will be deemed “on notice” about the harassing behavior. If so, the employer must take proactive steps to combat the harassment—even if the harassed employee does not complain—or the employer will probably be found negligent.
Example: A small video game development company hires Manesh as a game designer. Manesh is known in the industry as a genius at his job. But his last employer tells the new company that Manesh has a track record of “un-PC behavior.”
Sure enough, once Manesh starts work at the game development company, he begins making frequent sexually explicit jokes around both female and male colleagues. He also casually uses a lot of ethnic slurs, including some that refer to the ethnicities of his coworkers.
None of Manesh’s coworkers has the courage to complain to management. But managers do overhear his offensive comments frequently.
If a coworker of Manesh eventually sues the game development company on a claim of “hostile work environment” harassment by Manesh, the company may be found negligent because there is evidence that it was on notice about Manesh’s harassing behavior.
Also, the employer’s prior record in dealing with harassment complaints will become relevant in this kind of case. If the employee can show that the employer’s track record showed that a complaint of harassment was unlikely to accomplish anything, then a jury is more likely to determine that the employer was negligent.
3. Can Employees Sue for Harassment by a Customer or Client?
A problematic situation arises when an employee experiences harassment–sexual or otherwise–by a customer or client of the business, especially an important one.
Usually, the employer’s instinct is to please and placate the customer or client, in order to retain their business. But from the standpoint of California harassment law and the FEHA, it would be unwise to follow this instinct.
An employer is liable for third-party sexual harassment just as it would be for harassment by a coworker–that is, the employer is liable if its behavior regarding the harassment is negligent.
Negligence means that the employer knew or should have known of the harassment and failed to take appropriate corrective action (taking into account the employer’s degree of control over the client/customer/etc.).8
Example: Lily is a young lawyer at a business law firm. A partner at the firm asks Lily to take John, an important client, out to dinner.
At the dinner John drinks too much and ends up making aggressive sexual advances at Lily. She is forced to ask the waiter at the restaurant for help in fighting him off.
Lily is familiar with California employment and harassment law. She figures that she does not have a claim against her law firm for John’s harassing behavior, since there is no evidence that the firm behaved negligently. She does not tell the partners about the incident.
But a few months later Lily tells another female lawyer about her experience. This woman tells Lily that John has behaved that way toward other firm lawyers in the past and the partners knew about it. She also says that the partner probably asked Lily to go out with John deliberately, because he could tell she was “his type.”
This information suggests that Lily might be able to sue her employer for harassment by a client–since it indicates that the firm know about the harassment and did not do anything to prevent it.
All employers who are aware of harassment of their employees by clients, customers or independent contractors have an obligation to take steps to alleviate the hostile work environment this creates. This is true even in situations where a certain amount of sexual harassment would almost seem inevitable (for example, with a female employee working at a men’s prison).9
Call us for help…
For questions about workplace harassment by supervisors and non-supervisors under California’s Fair Employment and Housing Act, or to discuss your case confidentially with one of our skilled California sexual harassment 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.
California Department of Fair Employment and Housing (DFEH) — Sexual Harassment Fact Sheet
How to File a Harassment Complaint with DFEH
- Government Code 12940 GC — Employers, labor organizations, employment agencies and other persons; unlawful employment practice; exceptions [California workplace 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. Harassment of an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract by an employee, other than an agent or supervisor, shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action. An employer may also be responsible for the acts of nonemployees, with respect to sexual harassment of employees, applicants, unpaid interns or volunteers, or persons providing services pursuant to a contract in the workplace, where the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing cases involving the acts of nonemployees, the extent of the employer’s control and any other legal responsibility that the employer may have with respect to the conduct of those nonemployees shall be considered. An entity shall take all reasonable steps to prevent harassment from occurring. Loss of tangible job benefits shall not be necessary in order to establish harassment. (2) The provisions of this subdivision are declaratory of existing law, except for the new duties imposed on employers with regard to harassment. (3) An employee of an entity subject to this subdivision is personally liable for any harassment prohibited by this section that is perpetrated by the employee, regardless of whether the employer or covered entity knows or should have known of the conduct and fails to take immediate and appropriate corrective action. . . . (5) For purposes of this subdivision, “a person providing services pursuant to a contract” means a person who meets all of the following criteria: (A) The person has the right to control the performance of the contract for services and discretion as to the manner of performance. (B) The person is customarily engaged in an independently established business. (C) The person has control over the time and place the work is performed, supplies the tools and instruments used in the work, and performs work that requires a particular skill not ordinarily used in the course of the employer’s work.”)
- See Mogilefsky v. Superior Court (1993) 20 Cal.App.4th 1409, 1414–15.
- Government Code 12940 GC — Employers, labor organizations, employment agencies and other persons; unlawful employment practice; exceptions [California workplace harassment law], endnote 1 above. See also Department of Health Services v. Superior Court (2001) 94 Cal. App. 4th 14.
- State Department of Health Servs. v. Superior Court (McGinnis) (2003) 31 Cal.4th 1026, 1034. (“We conclude that an employer is strictly liable under the FEHA for sexual harassment by a supervisor. We further conclude that the avoidable consequences doctrine applies to damage claims under the FEHA, and that under that doctrine a plaintiff’s recoverable damages do not include those damages that the plaintiff could have avoided with reasonable effort and without undue risk, expense, or humiliation.”)
- Government Code 12926(t) GC — Definitions [used in California workplace harassment law]. (“(t) “Supervisor” means any individual having the authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend that action, if, in connection with the foregoing, the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment.”)
- Chapman v. Enos (2004) 116 Cal.App.4th 920, 931. (“We, therefore, conclude the court erred in instructing the jury that a supervisor must be fully accountable and responsible for the employee’s performance and work product. In our view, the error significantly restricted the class of employees subject to liability for sexual harassment, contrary to the FEHA.”)
- Government Code 12940 GC — Employers, labor organizations, employment agencies and other persons; unlawful employment practice; exceptions, endnote 1 above.
- Same. See also Carter v. Cal. Department of Veterans Affairs (2006) 38 Cal.4th 914.
- See Turman v. Turning Point of Cent. California, Inc. (2010) 191 Cal.App.4th 53, 59. (“While it may be true that male residents who are living under restricted conditions are likely to harass or mistreat their female supervisor, this does not absolve respondent of its legal responsibility under FEHA to take immediate and appropriate action to correct the situation.”)