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    Employment Law Divison

    Workplace Harassment in California – How to Fight Back

    California’s Fair Employment and Housing Act (FEHA) requires your workplace to be free of both sexual harassment and non-sexual harassment. Common examples of workplace harassment example include:

    • A colleague making sexually-charged jokes about your body or showing you vulgar pictures
    • Your supervisor asking to trade sexual acts for work benefits
    • Your co-workers bullying you over your ethnicity or using offensive epithets and slurs
    • A manager humiliating you about your disability

    Employers are legally obligated to prevent and address workplace harassment and may be held liable for their employees’ actions.

    If going to HR does not resolve the issue, you can file a complaint with California’s Civil Rights Department or else sue your employer for damages.1 Retaliation against you for reporting harassment – such as being fired or demoted – is illegal in California.

    In 2020, the California Department of Fair Employment and Housing (now called the Civil Rights Department) received almost 8,000 complaints of sexual harassment alone. This figure does not even include other forms of prohibited harassment.2

    Below, our California labor and employment attorneys discuss some of the most frequently asked questions we encounter about California harassment law:

    If, after reading this article, you have further questions, please do not hesitate to contact us at Shouse Law Group.

    1. How does California law define workplace harassment?

    The legal definition of workplace harassment under California’s Fair Employment and Housing Act (“FEHA”) encompasses two forms of harassing behavior:

    1. “Quid pro quo” harassment, in which a supervisor asks you to engage in sexual activity as a condition of receiving some form of benefit at work (a promotion, a raise, retention in your job, etc.); and
    2. “Hostile work environment” harassment, in which severe or pervasive harassing conduct, workplace bullying, or offensive jokes and comments create an abusive work environment for you.3

    Quid pro quo harassment is a form of sexual harassment only. By contrast, a hostile work environment can be based on sex, race, religion, or any other protected characteristic.4

    Law book open to the defintion of sexual harassment

    A hostile work environment can result from someone interfering with your work, intimidating you, ridiculing you, hurling slurs, threatening or assaulting you, or tormenting you with offensive objects, photos, videos, or drawings.

    You are legally protected from workplace harassment whether you are a:

    • Current employee;
    • Job applicant;
    • Unpaid intern;
    • Volunteer; or
    • Independent contractor.5

    Note that isolated, minor incidents of insensitive behavior do not constitute harassment.6

    2. What about non-sexual harassment?

    In addition to prohibiting sexual workplace harassment, FEHA prohibits non-sexual workplace harassment in California.

    Specifically, non-sexual workplace harassment based on any of the following protected characteristics is unlawful:

    Two white employees laughing-behind back of an African-American employee

    Workplace harassment can cause stress, depression, anxiety, sleep problems, and inability to work, and even PTSD.

    3. When is my employer liable?

    If you were harassed in California by a supervisor, then your employer is strictly liable.8 This means your employer owes you damages even if they were not negligent in any way.9

    If you were harassed by a non-supervisor such as a co-worker, client, contractor or other third party, then your employer is liable only if they behaved negligently.10 This means that your employer knew or should have known about the harassment but failed to take appropriate corrective action.11

    Demonstrating harassment or a hostile work environment does not require that you suffer financial harm or get terminated from your job. Furthermore, you are not even required to be the direct target of the illegal conduct in question.

    4. How do I bring a workplace harassment lawsuit?

    Our California labor and employment lawyers recommend that you take the following steps if you are facing harassment:

    1. Document the harassment, which can include videos or photos or compiling incriminating emails, voicemails, memos, etc.
    2. 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. 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.
    3. File a complaint with the California Civil Rights Department (“CRD”). This step is required before we can file a workplace harassment lawsuit in California.
    4. Wait for the CRD to issue a “right to sue” notice (this may be done right away, or following an investigation of the harassment complaint by CRD). Once the notice is issued, we may file a civil workplace harassment lawsuit against your harasser and/or your employer seeking monetary damages.12

    CRD complaints generally must be filed within three years after the harassment occurs.13 Similarly, a civil lawsuit must be filed within one year of receipt of a “right to sue” notice from CRD.14

    Note that California harassment law prohibits your employer from retaliating against you if you complain about harassment or participate in harassment investigations.15 Common forms of retaliation include:

    Boss putting hand on female employee

    Employers facing complaints or lawsuits for workplace harassment are sometimes sued for discrimination at the same time.

     5. What about discrimination?

    FEHA prohibits discrimination in the workplace on the basis of race, sex, religion, and other protected characteristics.17 The difference between a claim for workplace discrimination and a claim for workplace harassment is this:

    • Harassment occurs when the perpetrator acts outside their job duties. An example is a supervisor making disparaging remarks to you: Making disparaging remarks is not part of their job.
    • Discrimination occurs when the perpetrator is engaged in activities that are part of their job duties. An example is a supervisor assigning you harder work because of your race: Assigning work is part of their job.18

    The procedure for filing a workplace discrimination claim is largely the same as for filing a workplace harassment claim.

    6. Is sexual harassment training mandatory in California workplaces?

    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 sexual harassment poster/fact sheet. Employers who fail to provide this training face compliance fines.19

    7. Other types of harassment in California

    There are many types of harassment that do not necessarily involve the workplace. Oftentimes the harasser can face criminal charges:

    • Harassing you to the point that you fear for your safety qualifies as stalking.
    • Emotionally abusing a person who is 65 or older qualifies as elder abuse.
    • Harassing a current or former intimate partner through force – or the threatened use of force – is domestic violence.
    • Any harassment that turns physical can be charged as assault or battery.

    If you are a victim of domestic violence, you can apply for a domestic violence restraining order against the abuser. Or if you and the harasser are not in a close relationship (such as platonic friends, neighbors or strangers), you can apply for a civil harassment restraining order.

    Protective orders can require that the alleged harasser either:

    1. stay away from you,
    2. move out of your home (“kick-out order”), and/or
    3. refrain from certain personal conduct such as contacting you over the phone.
    Employees undergoing sexual harassment training, per SB 1343.

    Training supervisors on an anti-harassment policy is an important step for employers seeking to avoid harassment charges and increase the well-being of employees.

    8. Additional resources

    For more information, refer to the following:

    1. Workplace Bullying Institute – Leading organization dedicated to enacting laws against workplace bullying.
    2. Workplace Harassment Legislative Principles and Priorities – The ACLU’s call for legislative action to end workplace harassment.
    3. EEOC Harassment Information – Harassment overview and resources from the U.S. Equal Employment Opportunity Commission.
    4. Workplace Bullying Is Not Employee Dissatisfaction and Is Different from School Bullying – Article in Workplace Psychology blog.
    5. Right to Be – Nonprofit movement to end harassment in all spaces, including work.

    Legal References:

    1. Government Code 12940 GC.
    2. California Department of Fair Employment and Housing, 2020 Annual Report.
    3. See Mogilefsky v. Superior Court (1993) 20 Cal.App.4th 1409, 1414–15. See also, for example, Jenson v. Eveleth Taconite Co (8th Cir. 1997) 130 F.3d 1287 (the U.S.’s first sexual harassment class action); Shank v. CRST (Court of Appeals of California, Fourth District, Division Three, 2015) No. G049844 (employer was held liable for not protecting female employee); ANI Chopourian v. Catholic Healthcare West (E.D. Cal. Dec. 20, 2011) Civ. No. S-09-2972 KJM KJN (a harassment victim was awarded $168 million).
    4. See Government Code 12940 GC.
    5. GC 12940.
    6. Hughes v. Pair (2009) 46 Cal.4th 1035.
    7. GC 12940.
    8. Same.
    9. Same.
    10. Same. See also Department of Health Services v. Superior Court (2001). 94 Cal. App. 4th 14.
    11. Same.
    12. Government Code 12965 GC. See Ali Zaslav and Jessica Dean, “Senate passes sweeping overhaul of workplace sexual misconduct law“, CNN (February 10, 2022)(“The bill, called Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, bans forced arbitration in cases involving sexual misconduct and allows victims the option of bringing up the dispute in federal, tribal or state court.”).
    13. Government Code 12960 GC; California Assembly Bill 9 (2019).
    14. Government Code 12965 GC; see also Smith v. BP Lubricants USA Inc. (Cal. App. 4th Dist. May 12, 2021), 2021 Cal. App. LEXIS 395.
    15. Government Code 12940 GC. See also Vines v. O’Reilly Auto Enterprises, LLC, (Court of Appeal of California, Second Appellate District, Division Seven, (January 22, 2022) Cal. App. LEXIS 49. See also Zamora v. Security Industry Specialists, Inc. (2021) 71 Cal. App. 5th 1.
    16. See, for example, Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238.
    17. Government Code 12940 GC.
    18. Serri v. Santa Clara University (2014), 226 Cal.App.4th 830.
    19. SB 778 (2019), which replaced AB 1825 (2004).

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