What is considered harassment at work in California?

In California, workplace harassment is unwanted conduct, directed at someone else, that is based on a protected characteristic. Those protected traits are listed by the California Fair Employment and Housing Act (FEHA). They include:

• race,
• religion,
• sex,
• gender,
• gender identity,
• sexual orientation,
• disability,
• pregnancy, or
• national origin.

Harassing behavior is unlawful if it creates a hostile work environment or a quid pro quo.

Hostile work environment

Most incidents of workplace harassment are unlawful for creating a hostile working environment. To establish that you were in a hostile working environment and hold the employer liable for it in California, you would have to show that:

1. you worked for the defendant,
2. you were subjected to harassing conduct because of your protected characteristic,
3. the harassing conduct was either severe or pervasive,
4. a reasonable person in your circumstances would have considered the work environment to be hostile, intimidating, offensive, oppressive, or abusive,
5. either a supervisor was doing the harassing behavior, or the employer knew or should have known about the harassment and failed to take immediate and appropriate corrective action, like requiring harassment training through human resources or adjusting their harassment policies,
6. you were harmed in some way, and
7. the harassment was a substantial factor in causing that harm.[1]

Note that this harassing behavior can target any protected trait.

Quid pro quo

Quid pro quo is Latin for “this for that.” This form of workplace harassment happens when a workplace benefit is made contingent on a favor, nearly always a sexual one, and that you suffered in the workplace for not accepting it. To establish that you have suffered from quid pro quo harassment and hold the employer liable, you have to show that:

1. you worked for the defendant, applied for a job with the defendant, or provided a service to the defendant pursuant to a contract,
2. the alleged harasser made unwanted sexual advances or engaged in other unwanted conduct of a sexual nature,
3. job benefits or favorable working conditions were, by words or conduct, made contingent on the acceptance of those advances,
4. at the time of the conduct, the alleged harasser was a supervisor or agent for the defendant,
5. you were harmed, and
6. the alleged harasser’s conduct was a substantial factor in that harm.[2]

While quid pro quo harassment can, in theory, involve any protected trait, it nearly always involves sexual favors.

Unwanted conduct that can be workplace harassment

Behavior that creates a hostile workplace can take several forms, including:

1. verbal harassment,
2. non-verbal behavior,
3. physical conduct, and
4. environmental discrimination.

Many workplace harassment cases involve more than one.

Verbal

Spoken words are a common aspect of harassment in the workplace. They can be:

• racial slurs,
• epithets,
• sexist language,
• yelling or other verbal abuse,
• name-calling, or
• off-color or offensive jokes.

The employment lawyers at our law firm have found that, generally, claims that only involve verbal behavior have to show that the behavior was persistent enough to amount to harassment. Words alone are rarely severe enough to support a workplace harassment case without being persistent.

Non-verbal

Non-verbal communications can also contribute to a hostile work environment. Some examples include:

• rude hand gestures,
• mimicry,
• leering or stalking, and
• offensive written content.

These types of behavior often accompany verbal harassment.

Physical

Perhaps the most severe type of harassing behavior is physical contact. This can take many forms:

• unwanted touching in a sexual manner,
• pushing someone, or
• getting into a physical altercation.

Our employment attorneys have found that physical contact is most common in claims of sexual harassment. In some cases, an isolated incident can be severe enough to support a hostile workplace allegation.

Environmental

Workplace harassment can also be environmental. Harassing work environments could include:

• certain groups of people with protected traits always get excluded,
• only certain types of people are hired,
• discriminatory signs are posted in the workplace, or
• pay is always lower for certain groups of people.

Sexual harassment

Many hostile work environment cases allege sexual harassment. This form of harassment is unwanted, unwelcome, and offensive conduct or advances that are based on your sex and that has become severe or pervasive enough to alter the conditions of your employment.[3]

Conduct is based on your sex if it targets your:

• sex,
• sexual orientation,
• gender, or
• gender identity.

Harassers can be:

• supervisors,
• coworkers,
• clients,
• vendors, or
• independent contractors.

Victims of sexual harassment can see their emotional well-being and work performance drop.

California law against harassment in the workplace

The main state law against workplace harassment is the California Fair Employment and Housing Act (FEHA). This law forbids discrimination based on the following protected classes:

• race,
• religion,
• color,
• national origin,
• ancestry,
• physical or mental disability,
• reproductive health decision-making,
• medical condition,
• genetic information,
• marital status,
• sex,
• gender,
• gender identity,
• gender expression,
• age,
• sexual orientation, and
• veteran status.[4]

Harassment based on any of these traits in the workplace can violate the FEHA. The law used to be enforced by the California Department of Fair Employment and Housing (DFEH), but is now enforced by the California Civil Rights Department (CRD).

Federal anti-harassment laws

Several federal anti-harassment laws apply to the workplace. The main federal law is Title VII of the Civil Rights Act of 1964, which includes harassment in its definition of employment discrimination.[5] Others include the:

• Americans with Disabilities Act,[6] and
• Age Discrimination Act.[7]

However, These federal employment laws provide fewer employee rights and protections than California state law. They also typically require victims to undergo an administrative claim process before initiating a legal action in court. This administrative process aims to resolve the harassment complaint outside the courtroom through mediation or arbitration.

According to the U.S. Equal Employment Opportunity Commission (EEOC):

Over 30,000 workplace harassment claims are filed with the agency nationwide every year. ^[8]

Legal Citations:

[1] California Civil Jury Instructions (CACI) No. 2521A.

[2] CACI No. 2520.

[3] Hughes v. Pair, 46 Cal.4th 1035 (2009).

[4] California Government Code 12940 GOV.

[5] 42 USC 2000e and Meritor Savings Bank, FSB v. Vinson, 106 S.Ct. 2399 (1986).

[6] 42 USC 12101.

[7] 29 USC 621.

[8] EEOC, “Harassment Charges – EEOC & FEPAs Combined: FY 1997 – FY 2011.”