The California Fair Employment and Housing Act employees prohibits both sexual harassment and non-sexual harassment in the workplace.1 Non-sexual workplace harassment means a hostile work environment in which an employee is harassed on the basis of categories such as:
- National origin or ancestry,
- Sexual orientation or gender identity, and/or
California harassment law is closely connected to California workplace discrimination law. Thus, it protects workers from harassment based on the same categories that can support a workplace discrimination claim.
Below, our California employment and harassment attorneys answer the following frequently asked questions about non-sexual workplace harassment in California:
- 1. Can California employees sue their employers for harassment on the basis of race, religion, national origin, age, etc.?
- 2. What is the legal definition of racial / religious / national origin / disability harassment in California?
- 3. What should a California employee do if s/he is harassed on the basis of race, religion, sexual orientation, disability or another protected category?
- 4. What should California employers do to prevent harassment on the basis of race, religion, age, disability, etc.?
If, after reading this article, you have further questions, we invite you to contact us at Shouse Law Group.
1. Can California employees sue their employers for harassment on the basis of race, religion, national origin, age, etc.?
California employment law prohibits harassment in the workplace on the basis of any of the following categories:
- National origin,
- Physical or mental disability,
- Medical condition or genetic information,
- Marital status,
- Gender identity or gender expression,
- Sexual orientation, or
- Military/veteran status.3
(You may notice that harassment on the basis of one's political beliefs is not included in that list. Political harassment is not illegal in California. However, retaliation by your boss for your political activities outside of work IS prohibited by California employment law.)
Here are some examples of behavior that could count as non-sexual harassment under the California Fair Employment and Housing Act:
Example: Mustafa is an engineer from Pakistan. Many of his co-workers are from India (a country that has a history of bad relations with Pakistan).
Several of Mustafa's Indian co-workers make repeated comments about how Pakistan is "full of terrorists" and ask Mustafa when "his people" are going to fix things in that country. On the anniversary of the September 11 terrorist attacks, these co-workers ask Mustafa if he is going to celebrate.
Mustafa tells his supervisor about this behavior, but she does nothing to stop it.
Mustafa may have a workplace harassment claim against his employer because he has arguably experienced national origin harassment at work.4
Example: Bill is in his late 60s and is the manager of a bookstore. Two of his sales staff are in their 70s. Bill regularly treats them in dismissive, insulting ways and gives them worse work assignments than the younger employees. However, Bill never specifically mentions their age.
The older employees may have a claim against Bill and the bookstore for age-based workplace harassment.
The two examples above illustrate several important points to remember about non-sexual workplace harassment under California's Fair Employment and Housing Act:
- First, it is possible for the perpetrators of racial/national origin/religious etc. discrimination to be members of ethnic or national-origin minorities themselves. (Mustafa was harassed on the basis of his national origin by coworkers who were members of a different ethnic minority group.)
- Second, non-sexual harassment can occur even if the harasser never specifically mentions the characteristic that is the basis for the harassment. If an employee is singled out for harassing treatment based on a protected status, then that is enough to support a claim for workplace harassment. It does not matter whether racial/ethnic slurs or similar language are used.
- Finally, it is possible for a harasser to share the protected status that is the basis for the harassment. In the example of Bill above, Bill was an older worker himself. But that does not mean Bill cannot commit age-based harassment against other older employees.
2. 2. What is the legal definition of racial / religious / national origin / disability harassment in California?
Harassment on the basis of race, religion, national origin, disability, etc. is what is known as "hostile work environment" harassment in California workplace harassment law.5
"Hostile work environment" is one form of harassment recognized under California labor law. (The other form, "quid pro quo" harassment, is relevant only in cases of sexual harassment.)6
The legal definition of hostile work environment harassment under the California Fair Employment and Housing Act is:
- Discriminatory intimidation, ridicule or insult (workplace bullying, essentially),
- That is either severe or pervasive enough to alter the conditions of employment and create an abusive working environment for the person being harassed.7
In most racial, religious, etc., harassment cases, the key issue is whether the bullying behavior is severe or pervasive enough to rise to the level of workplace harassment. The behavior does not have to be both severe and pervasive. But isolated and minor incidents will not meet the California legal definition of harassment.8
Example: Kelly is an African-American sales representative at a technology company.
One day her white supervisor tells her that her hair is too curly and that he thinks she would make more sales if she would straighten her "nappy" hair. Kelly is upset by this comment, and her supervisor never raises the issue again.
The supervisor's comment was offensive. But it was not part of a pattern of pervasive racial harassment, and it probably is not severe enough to rise to the level of harassment on the basis of race in California.
Example: Let's say Kelly gets a promotion that many of her colleagues have been competing to get. Not long after she gets the promotion, she finds an envelope on her desk. It contains a graphic photograph of an African-American being lynched and an unsigned note telling her to "watch her step."
Kelly tells her supervisor about the note. But his response is to roll his eyes and say, "What can you do? People are jealous of you around here."
Kelly may have a viable claim for workplace harassment on the basis of race. Even though this was an isolated incident, it involved threats to her physical safety and may be severe enough to constitute racial harassment.
As the second Kelly example above shows, non-sexual harassment under the California Fair Employment and Housing Act does not have to be perpetrated by a supervisor. It is possible for coworkers to harass one another on the basis of race, national origin, etc.9
However, if the racial, religious, sexual orientation, national origin, etc. harassment is committed by someone other than a coworker, then the employer is not strictly liable for the harassment.
This means that an employee can only successfully sue the employer for damages if s/he can show that the employer handled the harassment negligently. An employer is negligent if it knew or should have known about the non-sexual harassment, but failed to take appropriate corrective action.10
3. What should a California employee do if s/he is harassed on the basis of race, religion, sexual orientation, disability or another protected category?
Our California labor and employment lawyers recommend that employees facing harassment on the basis of a protected category like race, age, or disability take the following steps:
- Tell someone in the organization about the harassment--either a supervisor or a member of the Human Resources Department.
- File a complaint with the California Department of Fair Employment and Housing ("DFEH"), within one (1) year after the harassment occurs. This step is required before one can file a workplace harassment (sexual or non-sexual) lawsuit in California.
- Wait for the DFEH to issue a "right to sue" notice. Once the notice is issued, the employee and his/her California employment attorney may file a civil lawsuit against the non-sexual harasser and/or the employer seeking monetary damages, within one (1) year after the right to sue notice is issued.11
Sometimes employees are afraid to take action if they are harassed because they worry that they will be fired. But in fact the FEHA strictly forbids any retaliation (including wrongful termination) against employees who exercise their rights under California harassment law or participate in harassment investigations.
4. What should California employers do to prevent harassment on the basis of race, religion, age, disability, etc.?
It is a rare California employer that actually condones racial, religious, national origin, or other protected category harassment in the workplace. Most employers would like to do whatever it takes to prevent harassment of any of their employees--but many also do not know what the best steps are for doing so.
Our California labor and employment attorneys advise our employer clients to take the following five steps to prevent harassment in the workplace:
- Create a written policy against harassment on the basis of race, religion, national origin, disability, age, medical condition, sexual orientation--as well as sexual 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.
Of course, even taking all these measures is not a guarantee that incidents of workplace harassment will not occur. But even if they do, employers can minimize the damage from a harassment incident with an intelligent and thorough response to any harassment complaint.
Call us for help...
For questions about the law regarding racial harassment, religious harassment, national origin harassment, disability harassment, sexual orientation harassment, age-based harassment and other forms of non-sexual harassment 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 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 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. (4)(A) For purposes of this subdivision only, “employer” means any person regularly employing one or more persons or regularly receiving the services of one or more persons providing services pursuant to a contract, or any person acting as an agent of an employer, directly or indirectly, the state, or any political or civil subdivision of the state, and cities. The definition of “employer” in subdivision (d) of Section 12926 applies to all provisions of this section other than this subdivision. (B) Notwithstanding subparagraph (A), for purposes of this subdivision, “employer” does not include a religious association or corporation not organized for private profit, except as provided in Section 12926.2. (C) For purposes of this subdivision, “harassment” because of sex includes sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions. Sexually harassing conduct need not be motivated by sexual desire. (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. (k) For an employer, labor organization, employment agency, apprenticeship training program, or any training program leading to employment, to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.")
- Loosely based on the facts of Rehmani v. Superior Court (2012) 204 Cal.App.4th 945.
- Holmes v. Petrovich Development Co. (2011) 191 Cal.App.4th 1047, 1058–59. ("There are two theories upon which sexual harassment may be alleged: quid pro quo harassment, where a term of employment is conditioned upon submission to unwelcome sexual advances, and hostile work environment, where the harassment is sufficiently pervasive so as to alter the conditions of employment and create an abusive work environment.")
- See same.
- Serri v. Santa Clara University (2014), 226 Cal.App.4th 830, 869.
- Hughes v. Pair (2009) 46 Cal.4th 1035, 1042. ("Thus, “ ‘simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes' ” in employment conditions [and thus will not amount to non-sexual harassment].”)
- Government Code 12940 GC -- Employers, labor organizations, employment agencies and other persons; unlawful employment practice; exceptions [California harassment law], 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 [workplace harassment lawsuits]; Government Code 12960 GC -- Procedure for prevention and elimination of unlawful employment practices; application of article; complaints; limitations [workplace harassment complaints to DFEH].
- 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.")