Expertise

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

• Age.  Age-based harassment occurs when a worker over the age of 40 receives less favorable treatment because of their age.  Government Code §§ 12926 (b), 12940 (j).
• Race | Color | National Origin | Ancestry.  It is unlawful in California for employers to harass workers based on their race, the color of their skin, their national origin, or their ancestry.  Government Code § 12940 (j).  It is also unlawful for employers to harass a worker for their association with members of other races, skin colors, national origins, or ancestries.  Government Code §§ 12926 (o), 12940 (j).  Workers are protected even if they are members of racial groups that have not been traditionally discriminated against (like Caucasian workers).  McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 280 (1976).  California has therefore extended its protections against harassment to workers that are perceived to be of a certain race, color, national origin, or ancestry (or perceived to associate with these groups).  Government Code § 12926 (o).
• Religion.  It is unlawful to harass someone for their religious beliefs.  Government Code § 12940 (j).  The test to determine whether a religious belief is a “genuine” one is whether it is sincerely held by the employee.  California Fair Employment & Housing Com. v. Gemini Aluminum Corp., 122 Cal.App.4th 1004, 1013 (2004).  A condition limits a major life activity if it makes the achievement of that activity difficult.  Government Code § 12926 (m)(1)(B)(ii).
• Physical and Mental Disabilities.  In general, workers have a right to be free from harassment on the basis of their physical disability.  Government Code § 12940 (j).  A physical disability is any bodily condition, cosmetic disfigurement, or anatomical loss that affects one or more of the body’s major systems and limits a major life activity.  Government Code § 12926 (m)(1); Soria v. Univision Radio Los Angeles, Inc., 5 Cal.App.5th 570, 584 (2016); Colmenares v. Braemar Country Club, Inc., 29 Cal.4th 1019, 1026 (2003).  An employee does not have a qualified disability if their condition is mild and temporary.  California Code Regs., tit. 2 § 11065 (d)(9)(B).  Mild conditions are determined on a case-by-case basis.  They include conditions that have little or no long-term effects.  Muller v. Auto. Club of So. Cal., 61 Cal.App.4th 431, 440-444 (1998).  Examples include: common cold, seasonal or common influenza, minor cuts or abrasions, sprains, muscle aches, soreness, bruises, non-migraine headaches, and minor and non-chronic gastrointestinal disorders.  California Code Regs., tit. 2 § 11065 (d)(9)(B).  A mental disability, for these purposes, is any mental or psychological condition that limits a major life activity.  Government Code § 12926 (j)(1); California Code Regs., tit. 2 § 11065 (d)(1).  Workers have a right to be free from harassment due to their mental disability.  Government Code § 12940 (j).  An employer also may not harass a worker based on a perception that the worker has a mental disability, whether or not the belief is correct.  Government Code § 12940 (j)(4), (j)(5).  Common examples of qualified mental disabilities include: Emotional illnesses, Mental illnesses, Intellectual or cognitive disability, Certain learning disabilities, Autism spectrum disorders, Schizophrenia, Clinical depression, Bipolar disorder, Post-traumatic stress disorder, and Obsessive compulsive disorder.  California Code Regs., tit. 2 § 11065 (d)(1).
• Medical Condition.  California law protects employees with medical conditions.  This means that even though an employee is not currently experiencing symptoms, their employer may not harass against them.  Government Code § 12940 (j).  A medical condition is defined as any genetic characteristic associated with a disease or a health impairment related to a cancer diagnosis.  Government Code § 12926 (i); California Code Regs., tit. 2 § 11065 (d)(7).
• Genetic Information.  An employer may not collect genetic information from an employee or prospective employee to make any decisions regarding that individual’s employment.  Government Code § 12940 (o).
• Marital Status.  An employer does not have the right to harass against a worker for being single, married, separated, divorced, or widowed.  Government Code § 12940 (j).  Employers are also prohibited from adopting outright bans on hiring married workers at the same place of employment.  Hope International University v. Superior Court, 119 Cal.App.4th 719, 724 (2004).
• Sex.  An employer may not favor, discriminate against, or harass persons based on their sex.  Government Code § 12940(a), (j).  Workplace harassment laws protect men and women equally (as well as any other gender identifications).  As such, harassment perpetrated by women is unlawful to the same extent it would be for men.  Government Code § 12940 (j).  Harassment is unlawful even when the victim is the same gender as the aggressor.  Lewis v. City of Benicia, 224 Cal.App.4th 1519, 1525 (2014).
• Pregnancy.  It is unlawful for an employer to harass a pregnant employee on the basis of their pregnancy.  Government Code §§ 12926 (r)(1)(A), 12940 (j), 12945.
• Gender | Gender Identity | Gender Expression.  Employers are prohibited from harassing employees on the basis of their gender, gender identity, or gender expression.  Government Code § 12940 (j).  These terms are broad and include a person’s gender-related appearance and behavior, even if that isn’t stereotypically associated with the person’s assigned sex at birth.  Government Code § 12926 (r)(2).
• Sexual Orientation.  It is unlawful for an employer to harass a person for their sexual orientation.  Government Code § 12940 (j).  The phrase sexual orientation refers specifically to whether a person is heterosexual, homosexual, or bisexual.  Government Code § 12926 (s).  Employers are also prohibited from harassing employees for their perceived sexual orientation.  Government Code § 12926 (o).
• Military and Veteran Status.  It is illegal to harass active and veteran military service members.  Government Code § 12940 (j).  California’s anti-harassment protections apply to active military service members and veterans of the United States Armed Forces, United States Armed Forces Reserve, the United States National Guard, and the California National Guard.  Government Code § 12926 (k).

Hostile Work Environment Harassment

• Harassment occurs when a work environment is made to be hostile, offensive, oppressive, or intimidating.  Fisher v. San Pedro Peninsula Hospital, 214 Cal.App.3d 590, 608 (1989).  Harassment is unlawful when it is motivated by a protected characteristic.  Government Code § 12940.
• To be illegal, harassment must be severe or pervasive.  McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1113 (9th Cir. 2004).  The harassment may involve physical, oral, or written conduct that is offensive or derogatory-so long as it is motivated by the employee’s protected characteristic.  California Code of Regs., tit. 2 §§ 11019 (b), 11034 (f)(1).
• Hostile work environment harassment is conduct that is so pervasive that an abusive work environment is created.  The improper conduct must be severe, frequent, or both.  Lyle v. Warner Brothers Television Productions, 38 Cal.4th 264, 279 (2006).
• Hostile work environments only violate the law if the conduct is objectively hostile or abusive.  Lyle v. Warner Brothers Television Productions, 38 Cal.4th 264, 283 (2006).  The harassment must also subjectively offend, humiliate, or distress the victim.  Fisher v. San Pedro Peninsula Hospital, 214 California App.3d 590, 608 (1989).  A person cannot claim that they experienced a hostile work environment if they were emotionally unaffected by the harassment or if they purposefully invited it.  Meritor Sav. Bank, FSB v. Vinson, 477 U.S.  57, 68 (1986).
• Unlawful harassment in the workplace can take many forms, including:  physical Harassment, like unwanted physical touching; verbal harassment, like derogatory comments or innuendo and inappropriate jokes; visual harassment, like posters or signs or emails; aggressive or repeated requests for sexual favors or romantic relationships; showing favoritism or unequal treatment based on a protected characteristic.

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

• Employers have a duty to create a harassment-free workplace.  Government Code § 12940 (j)(1).  This duty involves preventing foreseeable harassment, immediately correcting known harassment, and proactively training employees about harassment.  Government Code § 12940 (k); California Code Regs., tit. 2 § 11023 (a); Government Code § 12950.1 (a).
• Employees must show two things:  the employer knew or should have known of the harassing conduct, and the employer failed to take immediate and appropriate corrective action.  California Code Regs., tit. 2 § 11019 (b)(4); Myers v. Trendwest Resorts, Inc., 148 Cal.App.4th 1403, 1419-1420 (2007).
• Large employers (those who have 50 or more employees) must provide sexual harassment training to all supervisory employees that work within California.  Government Code § 12950.1 (a).  The failure to provide this training to supervisors does not automatically make employers liable for sexual harassment.  Government Code § 12950.1 (d).  But if a qualified employer fails to comply with California’s training requirements, they may find themselves without a defense to certain sexual harassment claims.  The failure of the employer to comply with the training requirements could show that the employer did not take reasonable steps to prevent sexual harassment or even correct it.
• Employers in California are required to develop a written policy regarding the prevention of harassment, discrimination, and retaliation, and distribute that policy to employees.  California Code Regs., tit. 2 § 11023 (b).
• Employers should distribute a sexual harassment brochure or an information sheet prepared by the Department of Fair Employment and Housing in California.  Employers are required to distribute those unless they have informational documents with equivalent information.  Government Code § 12950.
• Employers in California are required post a specific anti-discrimination and harassment notice from the Department of Fair Employment and Housing in a “prominent and accessible” location in the workplace.  Government Code § 12950 (a).
• Aiding and Abetting Harassment is prohibited.  Government Code § 12940(i).

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

• Harassment victims have the right to recover money from their harassers and often their employers too.  Government Code § 12965 (c); Commodore Home Systems, Inc. v. Superior Court, 32 Cal.3d 211, 215 (1982).
• If the harasser is a supervisor or employer, the employer is strictly liable for the harassment.  State Dept. of Health Services v. Superior Court, 31 Cal.4th 1026, 1041 (2003).  If the harasser is a coworker or other non-supervisory employee, the employer is liable for the harassment when the employer knew or should have known of the harassing conduct, and the employer failed to take immediate and appropriate corrective action.  Government Code § 12940 (j)(1); Hope v. California Youth Authority, 134 Cal.App.4th 577, 588 (2005).
• Employers may be liable for harassment even if the harasser is not an employee.  The extent of the employer’s liability may depend on the amount of control they have to prevent the non-employee’s offending conduct.  Government Code § 12940 (j)(1).