Workplace harassment is illegal under both federal and California law and is a form of employment discrimination. Harassment is defined as unwelcomed behavior and policies that are based upon an employee’s race, color, creed religion, sexual orientation or gender identity, sex (including pregnancy and maternity), nationality, age (40 or older), disability or genetic information.
Harassing behavior occurs whenever an employee must work in an offensive environment as condition of their employment OR the offensive conduct or behavior is strong enough to create a hostile or intimidating work environment.
It is important to distinguish when such behavior becomes illegal. For example, simple slights or jokes or minor annoyances that are not extremely offense may not rise to the level of illegality. In order to rise to the level of illegality, the behavior, conduct and/or policies must create a hostile work environment that any other reasonable person could not tolerate.
As an employee in California, you have the right to be treated with respect, and to work in an environment free of harassment. You, your employer, and your work colleagues must foster a working environment that promotes a sense of well-being for all.
Unfortunately, not all employers treat their employees well and some fail to properly address harassment and discrimination. If you have been the victim of workplace harassment, California allows you to file a complaint and recover damages.
The California Fair Employment and Housing Act (FEHA) prohibits discrimination in the workplace on the basis of the same categories on which harassment is prohibited: race, sex, religion, nationality, etc.
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 their job description and official duties.
Discrimination occurs when the responsible party is engaged in activities that are part of their official duties.
For example, it is harassment when a supervisor makes disparaging remarks to you, because these kinds of remarks are not part of the supervisor’s job. But it is discrimination when a supervisor favors or disfavors you on prohibited grounds when making work assignments – something that is part of the supervisor’s official duties.
You may experience both discrimination and harassment on the basis of sex or ethnicity. Employers facing complaints or lawsuits for workplace harassment are sometimes sued for discrimination at the same time.
The legal definition of workplace harassment under California FEHA encompasses two distinct forms of harassing behavior. These are:
But in order for you to have a valid claim of California harassment under the “hostile work environment” theory, you need to be able to show that the harassment was either severe or pervasive. This means that isolated incidents of insensitive behavior do not constitute harassment under harassment laws. But depending on the severity of the conduct, one harassing incident can give rise to a harassment claim.
You can have a viable harassment claim under California labor and employment law even if the offensive behavior was NOT committed by a supervisor.
“Quid pro quo” sexual harassment – conditioning a job 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.
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 sexuality, to name just a few examples.
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.”
But the law regarding the responsibility of employers for harassment is different for alleged harassment by supervisors versus 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.
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. A negligent employer is one that knew or should have known about the harassment, but failed to take appropriate corrective action.
At a basic level, sexual harassment is defined as unwanted sexual advances, requests or demands for sexual favors, and other physical conduct or verbal harassment this is sexual in nature. Sexual acts, ranging from unwanted physical touching to sexual assault, constitutes harassment in California.
Harassment, however, in not always sexual in nature, however, and can include offensive remarks about a person’s sex. Sex discrimination also include any comments or behavior negatively directed at a woman who is pregnant. It is also illegal to make derogatory comments that target an entire sex, rather than directly to an individual.
While we commonly think of sexual harassment as being physical harassment by a male against a female, it is important to remember that any sex could be the harasser or victim. The harasser could be a direct supervisor or a supervisor in a different department, a fellow co-worker, or someone who is not an employee of the employer, such as a client or customer.
The key to determining whether behavior or conduct in the workplace has risen to the level of unlawful harassment is to examine how unwelcome, severe, and longevity of the behavior. Obviously, there are certain forms of conduct that even on their first instance who rise to the level of sexual harassment, and quite possibly beyond. For example, the most extreme examples of sexual harassment are those of a physical nature, such as, sexual assault or battery, and of course, rape.
However, it is important to remember that sexual harassment exists on a spectrum, with the most extreme (rape) being on one end, and on the other end, conduct involving minor off-color sexual comments, jokes, and jests may or may not rise to the level of harassment. It is important to remember that regardless of how minor behavior may seem, employees (and their employers) should err on the side of caution by immediately reporting and responding to unwelcome behavior or conduct in order to fully assess whether any unlawful conduct has occurred.
As we discussed above, sexual harassment cases are not the only form of harassment recognized in California’s Fair Employment and Housing Act. Government Code 12940 prohibits non-sexual workplace harassment on any of the following bases (legally protected characteristic): race, religion, color, national origin, immigration retaliation, ancestry, physical or mental disability, medical condition or genetic information, marital status, sex, gender, gender identity or gender expression, age, perceived sexual orientation, or military and veteran status.
According to the FEHA Government Code 12940, “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.”
Basically, California harassment law also prohibits workplace retaliation (so-called “FEHA retaliation,” which could include wrongful termination or wrongful constructive termination) against you if you complain about harassment or participate in harassment investigations.
It is also important to note that male and female employees are not the only people in California with the 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).
To protect your rights, report any instances of harassment to your employer immediately.
Under California law, your employer can be liable for harassment of a non-supervisory employee or a non-employee if it knew or should have known about the harassment and failed to take immediate and appropriate corrective action. If your employer does not know about the harassment, you can still hold a harassing employee personally liable for their actions.
Your employer should have a policy in place for reporting and investigating harassment claims. You should review, understand, and follow this policy so you know when your employer has not taken appropriate action to handle your harassment complaint.
No California employer wants to have a workplace ruined 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.
Employer should take the following five steps to prevent sexual harassment and other forms of harassment in the workplace:
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.
California employers with more than five employees must provide two hours of sexual harassment training every two years to managers and supervisors, and provide one hour of sexual harassment training every two years to other employees.
Furthermore, this training must include the topics of gender identity and expression as well as sexual orientation.
As an employee, you must be given the (CRD) poster or fact sheet. Employers who fail to provide this training face compliance fines.
Following a workplace harassment allegation, our California workplace harassment attorneys recommend that the employer respond with the following seven measures:
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 who are 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 CRD complaint or even a harassment lawsuit may mean that the employer misses valuable opportunities to diffuse the situation.
Experiencing sexual or other forms of unlawful harassment in the workplace can be a profoundly unsettling experience. But California employment law, including FEHA, means that you do not need to suffer in silence.
Our California labor and employment lawyers recommend that you take the following steps if you are facing harassment:
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 you make your case if you eventually need to file a complaint or lawsuit about the harassment.
File a complaint with the CRD (this step is required before one can file a workplace harassment lawsuit in California).
Wait for the CRD to issue a “right to sue” notice (this may be done right away, or following an investigation of the complaint by CRD). Once the notice is issued, you or your employment attorney may file a civil lawsuit against the harasser and/or the employer seeking monetary damages, including for emotional distress. It may also be possible to get punitive damages and attorney’s fees.
There are time limits for bringing harassment complaints or workplace harassment lawsuits. CRD complaints generally must be filed within three (3) years after harassment occurs. Similarly, a civil lawsuit must be filed within one (1) year of receipt of a “right to sue” notice from CRD.
When workplace harassment disrupts your professional life, it’s crucial to have experienced legal advocates by your side. Freeburg & Granieri, APC, based in Pasadena, is dedicated to fighting for your rights. Whether you've faced harassment, endured an abusive work environment, or need help with a written complaint, our employment law attorneys are here to guide you through the legal process. We specialize in various legal services, helping clients seek justice, including punitive damages, attorney's fees, and compensation for emotional distress.
Don’t let harassment go unchallenged—take action today. Contact Freeburg & Granieri, APC, to protect your rights and secure the privileges of an attorney-client relationship. Our skilled employment lawyers are ready to support you every step of the way, ensuring your case is handled with the expertise and dedication it deserves.
Our clients become friends, confidants, and repeat customers. Former clients are our best referral source.
Do not be a commodity, find an attorney who treats your legal issue with the care it deserves.
