Workplace Harassment in California

These articles are intended to be read only by consumers looking for general information regarding California harassment law, as well as attorneys who represent employees who have suffered harassment in the workplace. By reading these articles, you confirm that you are not an attorney who regularly defends employers in harassment claims or a representative of an insurance company.

PROLOGUE

In today’s world, people often spend dozens of hours per week and thousands of hours per year working with co-workers, volunteers, interns, and independent contractors. During that time spent around each other, people may act in such a way that causes harm to others due to their prejudices, biases, attraction, and hostility. Harassment may have a profound impact on those in the workplace. These articles provide insight on harassment claims under California law based on my experience as an attorney representing clients who have stood up against their harassers through a civil lawsuit, as well as legal authority for other plaintiff’s attorneys to use when fighting for their clients.

WHAT CONSTITUTES HARASSMENT?

Is there a bright-line rule to figure out what is harassment and what is not harassment?

The short answer to this question is no. Each case alleging harassment requires an in-depth understanding of the workplace situation. There is some conduct that is considered classic examples of harassment though, such as:

Verbal harassment: obscene language, demeaning comments, slurs, or threats;
Physical harassment: unwanted touching, assault, or physical interference with normal work or movement;
Visual harassment: offensive posters, objects, cartoons, drawings;
Unwanted sexual advances;
Derogatory, unwanted, or offensive photographs, text messages, or internet postings.

See California Civil Jury Instructions No. 2523; 2 California Code of Regulations § 11019(b).

By: Max Lee, last updated June 3, 2020

IS ALL OFFENSIVE BEHAVIOR CONDUCT IN THE WORKPLACE CONSIDERED ILLEGAL HARASSMENT?

I often tell my clients that the law is very powerful, but also narrow. The law allows regular people to take their very powerful, rich, influential employers with insurance and a team of lawyers to court to hold them responsible for committing harassment. That is the power of the law, but the law does not try to control all aspects of the workplace. In fact, harassment is prohibited only when it is proven that the harassment was due to specified protected characteristics. The Fair Employment and Housing Act forbids harassment based on the following protected characteristics:

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
Military and veteran status

Government Code section 12940(j)(1).

By: Max Lee, last updated May 21, 2020

Can my employer tell me how to dress or look a certain way at work?

In general, employers can legally impose standards regarding physical appearance, grooming, and dress in the workplace. 2 California Code of Regulations § 11019(c). This means that employers can legally require their workers to wear uniforms or look a certain way while at the workplace. Think about the companies that portray a certain image that could be considered edgy or even shocking, and thus require their employees to wear tight, short, or provocative clothing. As long as there is a reasonably legitimate reason that does not target or favor some workers over others, these kind of workplace appearance standards should be fine.
There are limits though. If the physical appearance, grooming, and dress standards discriminate based on a protected characteristic and also significantly burdens individuals in their employment, those standards are illegal. 2 California Code of Regulations § 11019(c). So if companies only force their female employees to wear the uniforms but allow their male employees to wear whatever they want for example, or forbid their employees from wearing certain religious headwear related to their religion but allow other employees to wear secular hats, such policies may be unlawful.

By: Max Lee, last updated May 21, 2020

MY SUPERVISOR IS A TERROR AND YELLS, SCREAMS, AND BERATES ME WHEN I MAKE ANY KIND OF MISTAKE, ISN’T THAT HARASSMENT?

Harassment consists of a type of conduct not necessary for performance of a supervisory job, or conduct outside the scope of necessary job performance. Reno v. Baird (1998) 18 Cal.4th 640, 645-646. Presumably, the harassing conduct is done for personal gratification or motives, such as meanness or bigotry. Id.
So if the yelling and screaming is confined to job performance (“you did a horrible job”), and does not stray into personal remarks (“you are a horrible person”), such conduct is not usually considered harassment. This kind of conduct is clearly inappropriate and unprofessional, but may not constitute harassment by itself. Also, if the supervisor yells and screams at every person regardless of their protected characteristics, then it is difficult to conclude that the supervisor is singling out someone due to their protected characteristics.

By: Max Lee, last updated May 21, 2020

If my supervisor offers to help my career in exchange for sexual favors, is that harassment?

California prohibits quid pro quo sexual harassment when an employee is offered work, favorable working conditions, or any other benefit at work such as a raise, promotion, or even retention of a job on the condition of accepting unwelcome sexual advances. Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 607. This type of harassment may include “sexual propositions, unwarranted graphic discussions about sexual acts, and commentary about an employee’s body and the sexual uses to which it could be put”. Mogilefsky v. Superior Court (1993) 20 Cal.App.4th 1409, 1414. One of the classic examples of quid pro quo sexual harassment is an employee who applies for a job and the supervisor offers the job on the condition the employee agrees to perform a sexual act.

By: Max Lee and Kallan Oliver, last updated May 31, 2020

IF I AM BEING HARASSED BECAUSE PEOPLE THINK THAT I BELONG TO A PROTECTED CLASS, BUT I ACTUALLY DO NOT, IS THAT CONSIDERED HARASSMENT?

The Fair Employment and Housing Act’s main goal is to eliminate discrimination practices in both the workplace and housing in California. Government Code section 12920. Prejudice based on perceptions can be as insidious and damaging as prejudice based on actual identification. The prohibition of workplace harassment extends to harassment based on the perception of a person’s race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, age, sexual orientation, or military and veteran status. See Government Code section 12926(o).
This law puts the focus on the employer’s conduct, rather than the employee’s identification or the employer’s subjective motivation. See Taylor v. Nabors Drilling USA, LP (2014) 222 Cal.App.4th 1228, 1240. California law does not protect those who engage in harassment at the workplace based on the wrong protected characteristic. This means that workplace harassment claims can still succeed when employers engage in severe or pervasive offensive conduct based on wrongly perceiving that someone in the workplace belongs to certain protected classes.

By: Max Lee and Kallan Oliver, last updated May 31, 2020

WHAT ARE MY OPTIONS AFTER EXPERIENCING HARASSMENT?

What should I do if I experience harassment in the workplace?

Every situation is different and depends on your circumstances. I will try to provide the two main options you have to seek justice through the civil system.
Under California law, one option is to file a complaint with the Department of Fair Employment and Housing to start an investigation. The Department of Fair Employment and Housing is a California agency charged with enforcing California’s civil rights laws in employment, housing, and public accommodations. To submit a complaint to the Department of Fair Employment and Housing, you can call the department, mail an intake form to the agency, or submit a complaint online. Filing a complaint sets in motion a series of steps, including investigation, a merit finding, potential dispute resolution, and possibly prosecution by the Department of Fair Employment and Housing on your behalf against the people responsible for your harassment.
Another option is to file a lawsuit in the appropriate court. To have the right to file a lawsuit, an employee must obtain a document called a Right-to-Sue notice from the Department of Fair Employment and Housing. This Right-to-Sue notice needs to specify the type of claims and the protected characteristics or activity that is the basis of the claims. After the Right-to-Sue notice is obtained, you can file a Summons and Complaint in the appropriate court to begin the process of a civil lawsuit against the people responsible for your harassment.

By: Max Lee, last updated May 22, 2020

If I experienced employment harassment MORE THAN A year ago, may I still pursue a case?

Yes, effective January 1, 2020, California law allows for a person claiming employment harassment to have three years from the last date of a harassing incident to obtain a Right-to-Sue notice from or file a complaint with the Department of Fair Employment and Housing. Government Code section 12960(e). Previously, the statute of limitations for all claims of employment harassment in California was limited to one year. Once the Right-to-Sue notice is issued, a claimant has an additional year to file a lawsuit in the appropriate court alleging a violation of the Fair Employment and Housing Act. This new law only applies to claims based on the Fair Employment and Housing Act, such as harassment, in which there was misconduct on or after January 1, 2019.

By: Max Lee, last updated May 21, 2020

If I continue to perform my job well while being harassed, will my employer use that against me?

California law recognizes that plaintiffs experiencing harassment need not prove their productivity has declined as a result of the harassment, and instead just needs to show that the harassment so altered working conditions as to make it more difficult to do the job. Government Code section 12923(a).

By: Max Lee, last updated May 21, 2020

If I am not classified as an employee, am I still protected from harassment?

Yes. The Fair Employment and Housing Act protects employees, as well as applicants, unpaid interns, volunteers, and people providing services pursuant to a contract (e.g., independent contractors), from harassment in the workplace under Government Code section 12940(j)(1). This means that if a claimant applies for a job and the prospective employer propositions that person for some kind of sexual favor in exchange for the job, that could be the basis for a workplace harassment claim even if that person never worked for the prospective employer.

By: Max Lee, last updated May 21, 2020

If I do pursue a harassment case in court, what can I recover?

I often say to my clients that I wish I had a time machine that could transport them back in time before they had their lives drastically affected due to harassment in the workplace. I have personally seen how the scars of severe or pervasive harassment have caused irreparable harm to the emotional, mental, and physical well-being of good people.
Unfortunately, I do not have a time machine yet. In a civil case, the primary way people seek justice is through the payment of money. Sometimes the payment is voluntary through a settlement and sometimes the payment is forced through a judgment. Sometimes the payment fully compensates the claimant because the employer has sufficient assets including insurance, and sometimes the reality of the employer’s financial situation means that the claimant’s ability to recover compensation for their damages is less than full. California law allows claimants to recover economic damages, general damages, punitive damages, certain litigation costs, and attorney’s fees in harassment cases. See Peralta Community College District v. FEHC (1990) 52 Cal.3d 40, 48.

Economic Damages

Economic damages are things such as medical bills, lost wages, and lost property. These kinds of damages can be calculated by using numbers and appraisals. When a jury allows a claimant to recover economic damages, that is meant to allow the claimant to replace the money that was spent or more likely will be spent due to the harassment.

General Damages

General damages are things such as physical pain, mental suffering, loss of enjoyment of life, disfigurement, physical impairment, inconvenience, grief, anxiety, humiliation, and emotional distress. When a jury allows a claimant to recover general damages, that is meant to provide compensation for the human harms that a claimant suffered and may continue to suffer due to the harassment. The law recognizes that there is no fixed standard to decide the amount of these general, “non-economic” damages. Plotnik v. Meihaus (2012) 208 Cal.App.4th 1590, 1602. A jury must use its judgment to decide a reasonable amount to allow a claimant to receive to compensate for past and future general damages based on the evidence presented in a case and common sense. Id. Oftentimes, the testimony of experts regarding mental health as well as other people close to the claimant who can speak to the effect the harassment had on the claimant is useful evidence.

Punitive Damages

Punitive damages are meant to punish wrongdoers for malicious, oppressive, or fraudulent conduct. Stevens v. Owens-Corning Fiberglas Corp. (2006) 49 Cal.App.4th 1645, 1658. For a company to be required to pay punitive damages, it must be proven that an officer, director, or managing agent committed the harassment, ratified the harassment committed by another employee, or knew that employee was unfit and still employed that person with a knowing disregard for the rights and safety of others.

Litigation Costs and Attorney's Fees

A claimant of harassment is able to recover litigation costs and attorney’s fees when they win at trial under California Government Code section 12965(b). Litigation costs are awarded routinely after trial in most cases under California Code of Civil Procedure section 1032, but shifting payment of attorney’s fees from one side to the other usually requires either a statute or a contract to do so. Attorney’s fees are usually calculated by multiplying the number of hours spent by an attorney by the attorney’s professional hourly rate to obtain what is known as the lodestar. Serrano v. Unruh (1982) 32 Cal.3d 621, 625. The Court then has the ability to multiply the lodestar figure by another number to increase or decrease the final attorney’s fees award. Ketchum v. Moses (2001) 24 Cal.4th 1122.

By: Max Lee, last updated May 21, 2020

If my coworker was harassed and the hostile work environment has deeply affected me, even though I was not the target, what can I do?

California law protects employees, interns, volunteers, and independent contractors in a hostile work environment who directly and personally witness or perceive harassment even if no offensive remarks or touching are directed at all employees. See Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 284. “When the workplace is permeated with discriminatory intimidation, ridicule and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment, the law is violated.” Kelly-Zurian v. Wohl Shoe Co., Inc. (1994) 22 Cal.App.4th 397, 409. “Generally, however, sexual conduct that involves or is aimed at persons other than the plaintiff is considered less offensive and severe than conduct that is directed at the plaintiff.” Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 284.
This means that even if you have never been the direct target of any harassing conduct, you can bring a harassment claim against your employer based on the harassment of your co-workers. For example, if you work with people of color who are targeted with constant and pervasive ridicule and offensive language and you witness the harassment, you can bring a lawsuit for your own damages caused by the hostile work environment.

By: Max Lee, last updated May 23, 2020

Can I still prove that harassment occurred when it is my word against somebody else’s word?

Yes. In the classic “he said versus she said” situation in which one person claims harassment occurred while the other person completely denies the allegation, a jury or judge at the end of trial must make a determination who is more believable and credible. In this type of case, a plaintiff’s version of events detailing harassment must be found to be more credible, even by just a little bit, than the defendant’s version of events denying that harassment occurred. The jury or judge can believe that one person is more believable than the other. If both people are found equally credible though, that means that the plaintiff did not meet the necessary burden of proof of more likely than not in a civil lawsuit.
People can prove they suffered harassment in the workplace through their testimony, the testimony of other witnesses, written complaints, emails, text messages, photographs, videos, audio recordings, and other evidence. One piece of evidence can be enough to prove the harassment occurred, but the more evidence of harassment that plaintiffs have the better chance they have at successfully proving their case. In a civil lawsuit, those alleging harassment must prove that harassment more likely than not occurred and caused harm to them. Lawyers call this the preponderance of the evidence standard, which is described as anything more than 50% more likely than not. This is a different standard of proof than in criminal cases, which use the beyond a reasonable doubt standard.

By: Max Lee, last updated June 1, 2020

WHEN IS MY EMPLOYER RESPONSIBLE FOR HARASSMENT?

Can I hold my employer responsible if my supervisor harasses me?

Under California law, “[a]n employer is strictly liable for all acts of sexual harassment by a supervisor.”  State Department of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1042. This means that if your supervisor commits the harassment, the employer is held responsible for the harm caused by the harassment. Keep in mind though that the harassment must have some connection with the employment rather than a completely private relationship.  See Myers v. Trendwest Resorts, Inc. (2007) 148 Cal.App.4th 1403, 1421. For example, if you and your supervisor hang out on the weekend for fun and your supervisor makes harassing comments or physical advances, there is a strong argument that there was no connection to the employment relationship and thus no employment harassment.
  The Fair Employment and Housing Act defines supervisor as “any individual having the authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend that action, if, in connection with the foregoing, the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment.” Government Code section 12926(t). This means that a job title does not determine whether the person is your supervisor. Instead, the person’s authority determines whether they are your supervisor.
  You may also pursue a harassment claim against the individual(s) who harassed you. Government Code section 12940(j)(3).

By: Max Lee, last updated May 21, 2020

Can I hold my employer responsible if my co-worker who is not a supervisor harasses me?

An employer can also be held liable for the harassment committed by a coworker, but California law requires that the employer knew about the harassment and failed to take immediate and appropriate corrective action before the employer is held responsible for the harm caused by the harassment. When you are subjected to harassment, it is important to immediately notify your supervisor, human resources, or any other person or department who is responsible for ensuring your safety.
“If an employee other than an agent or supervisor commits the harassment, and the employer takes immediate and appropriate corrective action when it becomes or reasonably should become aware of the conduct—for example, when the victim or someone else informs the employer—there simply is no ‘unlawful employment practice’ that the FEHA governs.” Carrisales v. Department of Corrections (1999) 21 Cal.4th 1132, 1136. This means that an employer has the opportunity to redress the harassment by taking corrective action, such as disciplining the harasser after an investigation is completed, transferring the harasser to a different location, or requiring harassment training, to avoid being held liable for harassment. “The measures need to include immediate corrective action that is reasonably calculated to 1) end the current harassment and 2) to deter future harassment.” Bradley v. California Department of Corrections and Rehabilitation (2008) 158 Cal.App.4th 1612, 1630. “The employer's obligation to take prompt corrective action requires 1) that temporary steps be taken to deal with the situation while the employer determines whether the complaint is justified and 2) that permanent remedial steps be implemented by the employer to prevent future harassment once the investigation is completed.” Id.
You may still pursue a harassment claim against the individual(s) who harassed you even if the employer is not legally responsible though. Government Code section 12940(j)(3).

By: Max Lee, last updated May 21, 2020

Can I hold my employer responsible if I do not know who is harassing me?

There are instances in which the identity of the harassers is unknown because the harassers hide their identity or commit harassing acts, such as stealing, defacing, or vandalizing personal property, only when the subject of the harassment is not present. It is important to immediately notify your supervisor, human resources, or any other person or department who is responsible for ensuring your safety. Once your employer knows or reasonably should have known about the harassment, then it is the responsibility of the employer to take immediate and appropriate corrective action to both end the current harassment and deter future harassment. See Bradley v. California Department of Corrections and Rehabilitation (2008) 158 Cal.App.4th 1612, 1630. If the employer fails to take that step and fulfill its own obligations just because you are unable to prove who harassed you, even though the harassment is apparent to everyone, then the employer may be held responsible for the harm to you caused by the harassment.

By: Max Lee, last updated May 21, 2020

WHEN CAN I FILE A HARASSMENT CLAIM?

Can I claim harassment based on just a few or even a single severe occasion?

Yes. “A single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment if the harassing conduct has unreasonably interfered with the plaintiff’s work performance or created an intimidating, hostile, or offensive working environment.” Government Code section 12923(b). In determining whether harassing conduct was severe, a jury is told to consider any or all of the following:

(a) The nature of the conduct;
(b) How often, and over what period of time, the conduct occurred;
(c) The circumstances under which the conduct occurred;
(d) Whether the conduct was physically threatening or humiliating;
(e) The extent to which the conduct unreasonably interfered with an employee’s work performance.

California Civil Jury Instructions No. 2524.

By: Max Lee, last updated May 21, 2020

Can I claim harassment based on months of constant occasions that taken one by one may not seem severe?

Yes. Harassment based on pervasive conduct may be shown through a concerted pattern of a repeated, routine, or generalized nature that interfered with a reasonable employee’s work performance and the claimant was actually offended. Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 609-610. If the circumstances show that the acts of harassment were not severe and was occasional, isolated, sporadic, or trivial, a harassment claim may be lost. Id.

By: Max Lee, last updated May 21, 2020

What if I have reported harassment to my employer, and they have not taken action?

The Fair Employment and Housing Act obligates employers to take reasonable action to prevent harassment in the workplace. Government Code section 12940(k); Northrop Grumman Corp. v. Workers’ Compensation Appeals Board (2002) 103 Cal.App.4th 1021, 1035. This duty requires that employers take “all reasonable steps to prevent” harassment, discrimination, and retaliation. Government Code section 12940(k). Consequently, upon learning of a potential harassment, discrimination, or retaliatory action, employers must respond “promptly and properly” to the allegations. Trujillo v. North County Transit District (1998) 63 Cal.App.4th 280.
This means that employers must investigate complaints of harassment regardless of whether the accusations appear credible at the outset. If the employer has not taken appropriate action to stop the harassment, such as transferring or disciplining the harasser as appropriate, then it may be appropriate to submit a complaint to the Department of Fair Employment and Housing to initiate an investigation or file a lawsuit after obtaining a Right-to-Sue notice from the Department of Fair Employment and Housing.

By: Max Lee and Kallan Oliver, last updated June 1, 2020

WHAT CAN MY EMPLOYER DO IN RESPONSE TO A HARASSMENT COMPLAINT?

Can my employer fire me for complaining about harassment?

Not legally. The Fair Employment and Housing Act prohibits employers from retaliating against an employee for engaging in a protected activity, which includes complaining about workplace harassment internally, to the Department of Fair Employment and Housing, or in a lawsuit. See Government Code section 12940(h); Fitzsimons v. California Emergency Physicians Medical Group (2012) 205 Cal.App.4th 1423, 1429. Significantly, a reasonable and good faith complaint of harassment does not need be proven in a trial more likely than not to support a claim for retaliation under the Fair Employment and Housing Act if the employer terminates the complainer due to the complaint. Miller v. Department of Corrections (2005) 36 Cal.4th 446, 473–474.
But there is a difference between what an employer can do and what an employer can do legally. The reason that employment attorneys such as myself have cases is because employers engage in illegal practices that cause serious harm to hard working employees. I have personally represented people who have been fired after making complaints of harassment in the workplace.

By: Max Lee, last updated May 23, 2020

Can my employer fire me for testifying truthfully or agreeing to testify about harassment in the workplace?

Not legally. The same law that protects someone from being fired for complaining about harassment they suffered also protects witnesses for testifying or otherwise assisting in a proceeding pursuant to the Fair Employment and Housing Act. Government Code section 12940(h) specifically states that it is an unlawful employment practice for an 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. This means that you are protected under California law from any adverse employment actions, such as a demotion, suspension, or discharge, imposed upon you due to your participation in a harassment complaint.

By: Max Lee, last updated May 23, 2020

Why should I notify my employer if I suffer harassment in the workplace?

Under California law, a person who has suffered workplace harassment can go directly to the Department of Fair Employment and Housing and file a lawsuit if a supervisor commits the harassment, or the employer already knows about the harassment without you personally notifying it about the misconduct. If the law allows someone to file a lawsuit right away after experiencing harassment, does it make sense to report the harassment to the employer? In my experience, yes it does.
Even if an employer is liable for workplace harassment of another because the harasser is considered a supervisor, the person who suffered harassment should still attempt to use the employer’s policies meant to prevent and correct the harassment for several reasons. First, and perhaps most importantly, the harassment may stop. Second, the employer can have an internal record of the harasser’s misconduct. Third, California law allows an employer to argue that the person who suffered should not receive full compensation for their harm if the employer can prove it took reasonable steps to prevent and correct workplace harassment, the person who suffered harassment “unreasonably” failed to use the preventative and corrective measures available, and the reasonable use of those procedures would have prevented some harm. State Department of Heatlh Services v. Superior Court (2003) 31 Cal.4th 1026, 1044.

By: Max Lee, last updated June 1, 2020

Who should I notify at my employer if I suffer harassment in the workplace?

When a person considered a supervisor or one of the agents of the employer knows or should have known of harassment, the employer must take immediate and appropriate corrective action to stop the harassment to avoid liability. Government Code section 12926(t) defines “supervisors” to mean any individual having the authority to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend that action using their independent judgment.
Those individuals may be direct supervisors of the person who suffered harassment and may also be any other person who has supervisory responsibility for the employer. The Fair Employment and Housing Act does not define who is an agent of the employer, but human resources departments are considered agents in most cases. This means that if you choose to notify someone of the harassment you suffered in the workplace, you should choose to inform someone in management or human resources at your employer.

By: Max Lee, last updated June 1, 2020

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