Harassment in the workplace (either sexual harassment or non-sexual harassment) is not permitted in California. Under the Fair Employment and Housing Act, Government Code 12940 GC, an employee who experiences harassment may have the right to sue their employer for damages.1
In 2015, the California Department of Fair Employment and Housing--the government agency responsible for enforcing California sexual harassment laws--received almost 5,000 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, California employees should be aware of their rights when they are confronted with a potential harassment case.
Our California labor and employment lawyers understand that the stakes of a workplace harassment claim are high--regardless of whether you are a small-business employer potentially facing devastating financial damages, or a harassed employee seeking justice for an experience that may have severely harmed your career prospects and personal dignity.
Below, our California labor and employment attorneys discuss some of the most frequently asked questions we encounter about California harassment law:
- 1. What is the legal definition of harassment under California employment law?
- 2. What about harassment other than sexual harassment?
- 3. Does sexual or non-sexual harassment have to involve a supervisor or boss?
- 4. What should an employee do if s/he is a victim of harassment?
- 5. What can California employers do to prevent sexual and other forms of harassment?
- 6. What should an employer do if an employee reports that s/he has been harassed?
- 7. What is the difference between employment discrimination and workplace harassment in California?
If, after reading this article, you have further questions, please don't hesitate to contact us at Shouse Law Group.
The legal definition of harassment under California's Fair Employment and Housing Act ("FEHA") encompasses two distinct forms of harassment. These are:
- "Quid pro quo" harassment, in which a supervisor asks an employee to engage in sexual activity as a condition of receiving some form of benefit at work (a promotion, a raise, retention in his/her job, etc.); and
- "Hostile work environment" harassment, in which harassing conduct and workplace bullying create an abusive work environment for an employee.3
Quid pro quo harassment is a form of sexual harassment only.
By contrast, a hostile work environment does not need to involve sexual harassment--or have anything to do with sex or gender. Hostile work environment harassment can be based on race, religion, national origin or sexual orientation, to name just a few examples.4
But in order for someone to have a valid claim of California harassment under the "hostile work environment" theory, they need to be able to show that the harassment was either
- severe, or
This means that isolated, minor incidents of insensitive behavior don't constitute harassment under Government Code 12940 GC.5
Below are several examples that illustrate the legal definition of harassment in California labor law:
Example: Ana's boss has been making it clear for some time that he finds her attractive. One day she asks him for help in dealing with a difficult coworker. He tells her he will help--but only if she will have a drink with him after work. He then proceeds to grope her without her consent.
Ana's experience probably meets the legal definition of quid pro quo sexual harassment.
Example: Tim is a gay man working at a construction company. His coworkers are all straight men. They frequently use homophobic language and slurs around him and make jokes about him wanting to sleep with other men at their work. Several times Tim has found sexually crude drawings left at his desk.
Tim may have a claim for hostile work environment sexual and sexual orientation harassment.
It is also important to note that employees are not the only people in California with a right to file harassment claims. California workplace harassment law also extends to:
- Job applicants;
- Unpaid interns;
- Volunteers; and
- People providing services pursuant to a contract (including independent contractors doing work for an employer).6
As we discussed above, sexual harassment is 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:
- 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
Example: Rashid is a Muslim high school teacher. The principal at his school makes frequent derogatory comments about Muslims, saying things along the lines of "they are all terrorists" and "they should be rounded up and sent back to where they came from."
Rashid may have a claim against his employer for hostile work environment harassment on the basis of religion.
An employee can have a viable harassment claim under California labor and employment law even if the offensive behavior was NOT committed by a supervisor.8
"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. But hostile work environment harassment--sexual or otherwise--can be committed by coworkers as well as by bosses.
In fact, hostile work environment harassment at a workplace can be perpetrated by people who don't even work there--such as clients or visiting contractors. This is often referred to as "third-party sexual harassment." 9
But the law regarding the responsibility of employers for harassment is different for alleged harassment by supervisors and alleged harassment by co-workers or other parties.
If harassment is alleged to have been committed by a supervisor, then the employer is strictly liable for the harassment--even if the employer's behavior was not negligent in any way.10
But 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.
We should also mention that California law, Civil Code 51.9, provides a right to sue to people who are the victim of sexual harassment in professional relationships--that is, people who are harassed by someone like a doctor, attorney, teacher, 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.
Experiencing sexual or other forms of harassment in the workplace can be a profoundly unsettling experience. But California employment law, including the FEHA, means that employees in this position do not need to suffer in silence.
Our California labor and employment lawyers recommend that employees facing harassment take the following steps:
- 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. And even if that does not happen, this step will help the employee make his/her case if s/he eventually needs to file a complaint or lawsuit about the harassment.
- File a complaint with the California Department of Fair Employment and Housing ("DFEH"). This step is required before one can file a workplace harassment lawsuit in California.
- Wait for the DFEH to issue a "right to sue" notice (this may be done right away, or following an investigation of the complaint by DFEH). Once the notice is issued, the employee and his/her employment attorney may file a civil lawsuit against the harasser and/or the employer seeking monetary damages.12
Employees who are the victims of workplace harassment typically want to know if there are time limits for bringing harassment complaints or lawsuits--and there are.
DFEH complaints must be filed within one (1) year after harassment occurs.13
Similarly, a civil lawsuit must be filed within one (1) year of receipt of a "right to sue" notice from DFEH.14
It is important to note that California harassment law also prohibits workplace retaliation (so-called "FEHA retaliation," which could include wrongful termination or wrongful constructive termination) against employees who complain about harassment or participate in harassment investigations.15
No California employer wants to have a workplace tainted by ongoing harassment. And it is certainly the case that no California employer wants the financial burden, bad publicity or impact on employee morale of a harassment lawsuit.
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 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.
Not even the most diligent efforts by employers are a guarantee against harassment occurring. But 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.
If an employee alleges that workplace harassment has occurred, 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 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 to protect 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.
These steps for responding to a workplace harassment complaint sound simple--but they can be incredibly complicated to implement.
In many situations, it makes sense for employers 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 DFEH complaint or even a harassment lawsuit may mean that the employer misses valuable opportunities to diffuse the situation.
The California Fair Employment and Housing Act also prohibits discrimination in the workplace on the basis of the same categories on which harassment is prohibited (race, sex, religion, national origin, etc.).16
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 his/her job description and official duties. Discrimination, on the other hand, occurs when the responsible party is engaged in activities that are part of his/her official duties.17
For example, it is harassment when a supervisor makes disparaging remarks to an employee--because these kinds of remarks are not part of the supervisor's job. But it is discrimination when a supervisor favors or disfavors employees on prohibited grounds when making work assignments--something that is part of the supervisor's official duties.
In practice, employees often experience both discrimination and harassment on the basis of sex or ethnicity--and employers facing complaints or lawsuits for workplace harassment are sometimes sued for discrimination at the same time.
Call us for help...
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 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.")
- California Department of Fair Employment and Housing, 2015 Annual Report, at 6.
- See Mogilefsky v. Superior Court (1993) 20 Cal.App.4th 1409, 1414–15.
- See Government Code 12940 GC -- Employers, labor organizations, employment agencies and other persons; unlawful employment practice; exceptions [California harassment law], endnote 1 above.
- 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 [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]. ("(b) If a civil action is not brought by the department within 150 days after the filing of a complaint, or if the department earlier determines that no civil action will be brought, the department shall promptly notify, in writing, the person claiming to be aggrieved that the department shall issue, on his or her request, the right- to-sue notice. This notice shall indicate that the person claiming to be aggrieved may bring a civil action under this part against the person, employer, labor organization, or employment agency named in the verified complaint within one year from the date of that notice. If the person claiming to be aggrieved does not request a right-to-sue notice, the department shall issue the notice upon completion of its investigation, and not later than one year after the filing of the complaint.")
- Government Code 12960 GC -- Procedure for prevention and elimination of unlawful employment practices; application of article; complaints; limitations [workplace harassment complaints to DFEH]. ("(d) No complaint may be filed after the expiration of one year from the date upon which the alleged unlawful practice or refusal to cooperate occurred . . .")
- Government Code 12965 GC -- Civil action in name of department; group or class complaint; relief; tolling of statute of limitations [workplace harassment lawsuits], endnote 12 above.
- 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.")
- Government Code 12940 GC -- Employers, labor organizations, employment agencies and other persons; unlawful employment practice; exceptions [California discrimination law; compare to California harassment law]. ("(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.")
- 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, 707, 101 Cal.Rptr.3d 773, 219 P.3d 749.) 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.”")