In California, workplace sexual harassment can come in 2 forms:
Not everything “sexual” in the workplace rises to the level of “sexual harassment,” however. Courts in California have refined what amounts to harassment in countless lawsuits.
The main law on sexual harassment in California is the Fair Employment and Housing Act (FEHA). This state law is found at California Government Code 12940. It was heavily revised with the passage of SB 1300 in 2018.
In this article, our California employment law lawyers explain:
- 1. What is sexual harassment in California?
- 2. What is “quid pro quo” sexual harassment?
- 3. How can being sexually harassed create a hostile working environment?
- 4. Who can commit sexual harassment in the workplace?
- 5. Who can file a sexual harassment claim?
- 6. What damages can a harassment victim recover in a lawsuit?
- 7. What is the statute of limitations for sexual harassment?
1. What is sexual harassment in California?
Being sexually harassed under California law falls into 2 categories:
- “Quid pro quo”, and
- “Hostile work environment”.1
Both types require that sexual conduct be unwelcome.
Sometimes, employees welcome conduct from a boss or coworker. In these instances, there is no harassing. Whether the advances were welcomed or not can be difficult to prove. It centers on intent, rather than outward actions.
Example: Pauline’s boss, Ted, asks her out on a date and she accepts. They begin a sexual relationship. Ted promotes her, but a year later their relationship ends. Pauline will probably not be able to prove being sexually harassed because Ted’s advances and sexual acts were not unwelcome.
In some cases, workers may have a claim of both types of harassment.
2. What is “quid pro quo” sexual harassment?
Supervisors who demand sexual favors for a workplace benefit commit “quid pro quo” sexual harassing.2
To prove a case of quid pro quo harassment, workers need to show:
- They worked for the defendant, applied for a job with the defendant, or provided services to the defendant,
- A supervisor or one of the defendant’s agents made unwanted sexual advances or other conduct,
- A favorable working condition was made contingent, by words or insinuation, on those sexual requests,
- The worker was harmed by this harassing conduct, and
- The supervisor’s actions were a substantial factor in that harm.3
Quid pro quo sexually harassing behavior involves the exchange of sexual favors for workplace benefits. However, those benefits can take numerous different forms, like:
- A promotion,
- A raise,
- Extra working hours,
- A more favorable working schedule,
- Assignment to a project of choice,
- Hiring the job applicant in exchange for a sexual favor, or
- Not firing the employee.
The quid pro quo element can be either explicit or implied.4
Whether express or implied, there have to be repercussions for a refusal in order to be harassing. Supervisory employees who threaten negative employment consequences if an employee refuses their sexual advances must actually follow through on that threat. If they do not follow through on their threat, there is no quid pro quo harassing.5 However, it can amount to a hostile working environment.
The worker claiming being harassed also has to establish a causal connection. They have to connect the refusal and the repercussions.
3. How can being sexually harassed create a hostile working environment?
A “hostile work environment” can also constitute being harassed. An employee has a claim against an employer if:
- The employee is the recipient of unwelcome advances, conduct or comment;
- This harassment is in some sense based on the employee’s sex; and
- This harassment is either severe or pervasive enough to alter the conditions of employment.6
Harassment claims based on a hostile working environment focus on 2 things:
- The severity of the conduct, and
- The pervasiveness of the conduct.
This type of harassment has to be more than just:
- Sporadic, or
To determine whether a working environment was hostile, courts look at all of the evidence available and whether a reasonable person in the victim’s position would feel harassed. Indirect evidence of harassment is permitted. Stray remarks by coworkers can be used to show that a working environment is toxic.8 This means that the question of whether harassment is severe or pervasive enough is often one for a jury. Amendments to the FEHA made in 2018 emphasize that summary judgments should be rare.9
The harassment does not actually have to be based on sexual activity, desire, or attraction.10 In fact, harassment can be non-sexual, as well. It can be on the basis of:
3.1. When does sexual quid pro quo lead to a hostile working environment?
A supervisor’s favorable treatment of one employee in exchange for sexual returns can create a hostile working environment for other employees.11 In these cases, the employee providing sexual favors can even welcome their supervisor’s advances. Other employees can claim they are suffering because of the supervisor’s sexual favoritism.
Example: A supervisor has numerous sexual affairs with female subordinates. Those employees get raises and promotions that are not justified by their job performance. Other female employees may have a claim for a hostile working environment.
4. Who can commit sexual harassment in the workplace?
Sexually harassing behavior in the workplace can come from a variety of people:
- Supervisors or bosses,
- Company owners,
- Independent contractors, or
Who commits the abusive conduct can make a huge difference in a sexual harassment lawsuit. For example, it is easier to hold companies liable for conduct done by supervisors than by non-employees. Additionally, some groups of people cannot commit certain types of behavior.
4.1. Supervisors or bosses
Supervisors or bosses are employed by the same person or company as the person being harassed. However, they have decision-making power over the victim of sexually harassing behavior.
Most cases of quid pro quo sex harassment involve a supervisor or boss. They have the leverage – even if it is only apparent leverage – to pressure a worker into a sexual favor. However, a supervisor’s conduct can also contribute to a hostile working environment.
Sexually harassing behavior by a boss is different from a non-supervisor’s conduct. It makes the employer strictly liable for the damages won in a harassment suit. The employer is liable even if it was not negligent or deficient in any way.12
Example: Claire’s boss aggressively and relentlessly flirts with her at work. The company can be held strictly liable for the harassment.
Coworkers are fellow employees of the same company. However, coworkers do not have power over each other in the same way that supervisors do.
Because of the lack of power or apparent leverage, coworkers are rarely able to commit quid pro quo sexual harassment. They can, however, be responsible for creating a hostile workplace.
When coworkers are responsible for sexually harassing behavior, the employer is only liable for damages if it was negligent. Employers are only negligent for sexually harassing behavior if they:
- Knew or should have known of the harassment, and
- Failed to take appropriate corrective action.13
If the employer was not negligent, then it cannot be held liable for the harassment. The victim of the harassment can, however, still pursue the individuals who were responsible for their ordeal.
Example: Claire’s coworker aggressively and relentlessly flirts with her at work. If Claire can show the company should have known about the problem and failed to take action, it can be held liable. If she cannot show these facts, she can pursue her coworker in the lawsuit.
4.3. Third parties, including independent contractors or vendors
People who are not employed by the same company can sexually harass in the workplace, too.14 Third parties who can harass someone on the job include:
- Independent contractors,
- Customers, or
- Other workers who regularly interact with the company’s employees, like a deliveryman.
An employer can be held liable for sexual harassment by a third party. However, the victim has to show that the employer:
- Knew or should have known about the harassment; and
- Failed to take immediate and appropriate corrective action.15
Appropriate corrective actions can include:
- Ending a business relationship with a harassing client,
- Kicking an abusive customer out of the store,
- Moving the employee to a location where they will not have to deal with a harassing deliveryman, or
- Reassigning the employee off of a project that requires interaction with a known harasser.
The extent of the employer’s control over the situation will matter. If it would have been easy for the employer to prevent the harassment, the employer is more likely to be held liable for it.
If the victim cannot hold their employer liable, he or she can still pursue a third party in a lawsuit.
Example: The package deliveryman always flirts with Claire when he comes by the office. She has told her supervisor about it numerous times, but nothing has happened. She can hold her employer liable for the harassment.
Third parties can also commit non-sexual harassment, as well. The FEHA used to prohibit sexual harassment committed by non-employees. Amendments to the law in 2018 removed the word “sexual,” prohibiting all types of workplace harassment by non-employees.16
4.4. Between members of the same gender
It is possible to be sexually harassed by a member of the same sex.17 Sexual orientation harassment can be grounds for a lawsuit, too.
California sexual harassment law is responsive to the complexities of sexual and gender identities in today’s workplace. The simplistic image of a male supervisor demanding sexual favors from a female employee is no longer the only kind of sexually harassing behavior that courts understand.
Example: A homosexual supervisor requests sexual favor from a male subordinate in return for a raise.18
Example: The coworkers of a male employee make pervasive comments and explicit jokes about his sexuality.19
5. Who can file a sexual harassment claim?
Anyone who has been sexually harassed in a workplace setting can file a lawsuit. Victims do not necessarily have to be employees. The law protects the following people from being sexually harassed:
- Job applicants,
- Unpaid interns,
- People providing services under a contract.20
Example: Mary is interviewing for a job. Her interviewer, a man, says that he can make sure she got the job, but only if she will go out on a date with him.
5.1. Does my work productivity have to suffer due to the harassment?
Harassed employees may not have to prove their productivity at work suffered due to the sexually harassing behavior.
The FEHA requires conduct to unreasonably interfere with someone’s work performance for it to be harassing behavior.21 The amendments made to FEHA in 2018 added several statements of intent about the law. One of them was that the harassment victim did not have to show that his/her “tangible productivity has declined as a result of the harassment.” Instead, the victim only has to show that the harassment altered working conditions to make the job more difficult.22
Statements of legislative intent like this are not as binding as a statute, though. One California appeals court seemed to follow the 2018 amendments.23 The California Supreme Court has not yet ruled on it.
5.2. What if I waived my rights in the employment contract?
Sexual harassment complaints can be filed by people who have signed an agreement that waived their rights to sue or disparage their employer.24 This is a new law. It was added to California law in 2018.25
Employers in the state of California cannot require people to release the employer for liability for sexually harassing behavior in exchange for:
- A raise,
- A bonus,
- Employment, or
- Continued employment.
Any agreement or contract that does this is not enforceable. It is a violation of public policy.26
The only exception is a negotiated settlement agreement to resolve a lawsuit or claim against the employer.27
6. What damages can a harassment victim recover in a lawsuit?
Victims of sexual harassment can recover compensatory damages in a lawsuit. These include:
- Back pay,
- Front pay,
- Pain and suffering,
- Mental anguish, and
- Loss of reputation.
Additionally, courts have the discretion of awarding prevailing parties in claims of sexually harassing behavior
- Attorneys’ fees,
- Punitive damages (in some cases),
- Court costs, and
- Expert witness fees.28
This means workers who lose these claims could pay damages to their employers. However, recent amendments to the law have restricted when employers can recover these damages. Now, courts can only give employers these damages if the claim was frivolous.29
If the case is settled, the settlement agreement cannot include a gag provision. Any part of the settlement that prevents the disclosure of information about the harassment is not enforceable in court.30 This law is new. It went into effect on January 1, 2019.31
7. What is the statute of limitations for sexual harassment?
Lawsuits for sexual harassing behavior have to be filed before the statute of limitations expires. Because these claims involve behavior that happens in the workplace, an administrative filing has to be made, first.
That administrative filing has to go to:
- The federal Equal Employment Opportunity Commission (EEOC), and/or
- The California Department of Fair Employment and Housing (DFEH).
DFEH filings generally have to be made within three years of the most recent instance of sexually harassing behavior. If the victim learns of the behavior after the three years has expired, they can have a 90-day extension to file.
EEOC filings under federal law have to be made within 180 days of the most recent incident of sexually harassing behavior. This window is extended to 300 days if a claim is also being filed with the DFEH.
The EEOC or DFEH will respond by either:
- Conducting its own investigation of the incident, or
- Issuing a right to sue letter that allows the victim to proceed with their own case.
Once a victim has received a right to sue letter, he or she has one year to file their lawsuit.32
Note that FEHA requires employers with 5 or more employees to provide sexual harassment training. Employers who fail to provide training courses and meet training requirements may be in a weaker position should an employee later sue because it suggests the employer did not take reasonable steps to prevent the offensive behavior.33
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- Holmes v. Petrovich Development Co., 191 Cal.App.4th 1047 (Cal. App. 2011); workplace sexually harassing behavior violates Title VII of the Civil Rights Act of 1964 and California Fair Employment and Housing Act.
- See Mogilefsky v. Superior Court, 20 Cal.App.4th 1409 (Cal. App. 1993).
- California Civil Jury Instructions (CACI) 2520.
- Mogilefsky v. Superior Court, Supra (“To state a cause of action on this theory, is it sufficient to allege that a term of employment was expressly or impliedly conditioned upon acceptance of a supervisor’s unwelcome sexual advances”).
- Hughes v. Pair, 46 Cal.4th 1035 (Cal. 2009).
- Hughes v. Pair, Supra.
- Hughes v. Pair, Supra.
- California Government Code 12923(c), affirming Reid v. Google, Inc., 50 Cal.4th 512 (Cal. 2010).
- California Government Code 12923(e), affirming Nazir v. United Airlines, Inc., 178 Cal.App.4th 243 (Cal. App. 2009).
- California Government Code 12940(j). See also Miller v. Department of Corrections, 36 Cal.4th 446 (Cal. 2005) (“a hostile environment may be created even if the plaintiff never is subjected to sexual advances”) and Accardi v. Superior Court, 17 Cal.App.4th 341 (Cal. App. 1993).
- Miller v. Department of Corrections, Supra.
- California Government Code 12940, Department of Health Services v. Superior Court, 94 Cal.App.4th 14 (Cal. App. 2001). There is renewed awareness of these types of claims due to the Time’s Up and Metoo movements.
- California Government Code 12940(j).
- California Government Code 12940(j).
- California Government Code 12940.
- California Senate Bill 1300.
- Mogilefsky v. Superior Court, 20 Cal.App.4th 1409 (Cal. App. 1993).
- Mogilefsky v. Superior Court, Supra.
- Singleton v. U.S. Gypsum Co., 140 Cal.App.4th 1547 (Cal. App. 2006).
- California Government Code section 12940.
- California Government Code 12940(j)(1). See also Thompson v. City of Monrovia, 186 Cal.App.4th 860 (Cal. App. 2010).
- California Government Code 12923(a), affirming Harris v. Forklift Systems, 510 U.S. 17 (1993) (Ginsburg, concurring).
- See Guaio v. Dameron Hospital, No. C081755 (Cal. App. 2019).
- California Government Code 12964.5.
- California Senate Bill 1300.
- California Govt. Code 12964.5(b).
- California Govt. Code 12964.5(c)(1).
- California Govt. Code 12965(b).
- California Senate Bill 1300.
- California Code of Civil Procedure 1001.
- California Senate Bill 820.
- California Govt. Code 12960(d); California Assembly Bill 9 (2019).
- FEHA sexual harassment prevention training.