Harassment

Workplace harassment based on an employee’s protected class or characteristic is illegal. 

Harassment

  • It is an unlawful employment practice for an employer 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.  Government Code § 12940(j)(1).
  • All overt physical threats and physical assaults are illegal in a California workplace. Penal Code §§ 242, 422.
  • Anti-harassment provisions apply to all private, state, and local employers.  Government Code § 12940 (j)(4)(A).
  • Anti-harassment laws protect nearly all workers, including employees, job applicants, independent contractors, unpaid interns, and volunteers.  Government Code § 12940(j)(1).
  • Harassment is a form of illegal discrimination because it deprives its victim of their statutory right to work in a place free of discrimination.  Fisher v. San Pedro Peninsula Hospital, 214 Cal.App.3d 590, 608 (1989); Government Code § 12940.

Protected Classes and Characteristics

Hostile Work Environment Harassment

Quid Pro Quo Harassment

  • “Quid pro quo” is a Latin phrase that means “this for that.”  California Code Regs., tit. 2 § 11034 (f)(1).
  • Quid pro quo sexual harassment occurs when sexual favors are requested or demanded in exchange for a specific job benefit.  Hughes v. Pair, 46 Cal.4th 1035, 1042 (2009).
  • Quid pro quo sexual harassment appears in one of two forms: an employer or supervisor offers an employee some kind of benefit which is conditioned upon the employee submitting to a sexual favor; or an employer or supervisor threatens an employee about some sort of work-related action, like a threat of termination, unless the employee submits to certain sexual demands.  California Code Regs., tit. 2 § 11019 (b)(2)(D).
  • Employers may not discriminate on the basis of lawful conduct that employees engage in during non-working hours and off premises, including consenual romantic relationships that do not interference with work.  Labor Code § 96(k).  Employers must be very careful imposing discipline for an employee’s off-duty conduct where the discipline is based on the employee’s romantic or social activities.  Rulon Miller v. IBM Corp., 162 California App. 3d 241 (1984).

Failure to Prevent Harassment

Retaliation

  • Employees are often worried about the consequences of pursuing a discrimination claim against their employer.  However, it’s important to understand that employers may not terminate or take adverse employment actions against their employees simply because the employee opposed the employer’s discriminatory policies.  Government Code § 12940 (h).
  • An employee who has suffered discrimination has a right to file a complaint, testify, or assist in any proceeding in a discrimination claim against their employer.  The employer may not retaliate against them for doing so.  Government Code § 12940 (h).

Harasser and Employer Liability