Workplace Harassment in California: When Conduct May Be Illegal
Workplace conflict is not always unlawful. Employees may encounter poor management, rudeness, personality clashes, insensitive comments, or stressful working conditions that are unacceptable but do not necessarily create a legal claim.
Workplace harassment in California may become illegal when unwelcome conduct is connected to a protected characteristic and is sufficiently serious or pervasive to create an abusive, hostile, or offensive work environment. Sexual harassment can also take the form of quid pro quo conduct, where workplace benefits or consequences are tied to sexual conduct.
Understanding the difference between inappropriate workplace behavior and unlawful harassment can help employees respond effectively and help employers address complaints before they become larger legal problems.
What is workplace harassment in California?
California’s Fair Employment and Housing Act prohibits harassment based on protected characteristics. The California Civil Rights Department explains that harassment protections apply to employees, applicants, unpaid interns, volunteers, and contractors, and that harassment based on a protected characteristic is prohibited in all workplaces, including those with fewer than five employees.
Protected characteristics include:
Race and color
Ancestry and national origin
Religion or creed
Sex and gender
Gender identity and gender expression
Sexual orientation
Pregnancy, childbirth, breastfeeding, and related medical conditions
Age, for employees age 40 and older
Physical or mental disability
Medical condition
Genetic information
Marital status
Military or veteran status
Reproductive health decision-making
The legal analysis is fact-specific. Unwelcome conduct may become unlawful harassment when it is based on a protected characteristic and sufficiently severe or pervasive under the applicable legal standard.
Harassment versus discrimination
Harassment and discrimination can overlap, but they are not identical.
Harassment usually concerns unwelcome conduct that creates a hostile, intimidating, offensive, or abusive work environment. It can include verbal, physical, visual, or written conduct.
Discrimination generally involves an employment decision or workplace action based on a protected characteristic. It may involve hiring, firing, compensation, discipline, scheduling, promotion, training, job assignments, or other terms and conditions of employment.
For example:
Repeatedly making sexual comments about a coworker may raise a harassment concern.
Denying someone a promotion because of their sex, disability, religion, or age may raise a discrimination concern.
Firing an employee for reporting either issue may raise a retaliation concern.
The California Civil Rights Department identifies hiring, promotion, termination, compensation, and working conditions as business practices that may be covered by employment-discrimination laws.
Common forms of workplace harassment
Sexual harassment
Sexual harassment can include unwelcome sexual advances, requests for sexual favors, sexual comments, repeated unwanted invitations, sexual jokes, physical contact, images, messages, or gender-based conduct.
California recognizes two general types:
Hostile work environment harassment may arise when unwelcome conduct is severe or pervasive enough to create an intimidating, hostile, or offensive work environment.
Quid pro quo harassment may arise when a person with authority over an employee ties a workplace benefit or adverse action to sexual conduct. Examples can include conditioning a promotion, pay increase, favorable assignment, continued employment, or other benefit on sexual favors.
Sexual harassment is not limited to conduct motivated by sexual desire. It can include harassment based on sex, gender, gender identity, gender expression, sexual orientation, pregnancy, or sex-based stereotypes.
Racial, national-origin, or ancestry-based harassment
This may include slurs, offensive “jokes,” derogatory comments, mockery of an accent or name, stereotypes, offensive images, or repeated conduct targeting someone because of race, ethnicity, national origin, or ancestry.
Religious harassment
Religious harassment can include mocking beliefs or religious practices, offensive remarks about religious clothing or observances, pressure to participate in religious activity, or conduct targeting an employee because of religion or creed.
Disability-based harassment
Disability harassment may include mockery, slurs, offensive comments, or demeaning conduct related to a physical or mental disability, medical condition, need for accommodation, or perceived disability.
Accommodation issues can raise separate legal questions. An employer may have duties related to reasonable accommodation and the interactive process, depending on the circumstances.
Age-based harassment
Employees age 40 and older may be protected from harassment based on age. Repeated comments about retirement, being “too old,” inability to learn technology, or being replaced by younger workers may be relevant when evaluating a broader pattern of conduct.
When does conduct create a hostile work environment?
Not every isolated comment or unpleasant interaction creates a hostile work environment claim. Courts evaluate the totality of the circumstances.
Relevant considerations may include:
How often the conduct occurred
How serious the conduct was
Whether the conduct was verbal, physical, visual, or threatening
Whether it affected the employee’s ability to do the job
Whether a supervisor, coworker, customer, vendor, or other third party was involved
Whether the employer knew or should have known about the conduct
Whether the employer took appropriate corrective action
A single incident can be serious enough in some circumstances. In other situations, a pattern of less extreme conduct may become actionable over time. The specific facts matter.
Can harassment come from someone other than a supervisor?
Yes. A workplace harassment concern can involve a supervisor, coworker, subordinate, customer, client, contractor, vendor, or other third party.
Employers should not dismiss a complaint merely because the person engaging in the conduct is not a manager. The appropriate response depends on the facts, the employer’s control over the situation, the workplace policies in place, and other circumstances.
What should an employee do about workplace harassment?
Document what happened
Keep a contemporaneous record of:
Date and time
Location
People involved
What was said or done
Names of witnesses
How you responded
Whether the conduct affected your work
Save relevant emails, text messages, chat messages, photographs, or other records that you are lawfully permitted to keep.
Review the reporting policy
Check the employee handbook, anti-harassment policy, or complaint procedure. Reporting concerns through an available channel can be important. Depending on the situation, an employee may report to a supervisor, HR, another manager, a compliance contact, or another designated person.
Preserve proof of the report
If possible, keep a copy of the complaint and any response. Record when the report was made and who received it.
Watch for retaliation
California law may protect employees from retaliation for reporting harassment, discrimination, or other unlawful workplace conduct. Retaliation can include termination, demotion, reduced hours, discipline, loss of opportunities, or other adverse treatment.
Seek legal guidance promptly
The right legal path depends on the facts. Claims may involve internal reporting, an agency filing, a right-to-sue notice, settlement discussions, or litigation. Deadlines may apply.
What should employers do after a harassment complaint?
A harassment complaint should be treated seriously, even if the employer is uncertain whether the conduct ultimately violates the law.
A responsible response may include:
Promptly acknowledging the complaint
Preserving relevant records and communications
Reviewing applicable policies
Taking steps to prevent further harm while the issue is assessed
Conducting an appropriate investigation or seeking advice about one
Documenting decisions and corrective action
Avoiding retaliation against the reporting employee or witnesses
Reviewing whether training, policy updates, or management guidance are needed
California employers with five or more employees are generally required to provide sexual-harassment-prevention training to supervisory and nonsupervisory employees. The California Civil Rights Department provides detailed information about the training requirement and covered employers.
Frequently asked questions
Does workplace harassment have to be sexual?
No. Workplace harassment may be based on other protected characteristics, including race, religion, national origin, disability, age, sex, gender identity, sexual orientation, or other protected categories.
Can one comment be enough for a harassment claim?
It depends. A single comment may not be enough in many cases, but a particularly serious incident may be legally significant. Courts look at the nature, severity, frequency, and context of the conduct.
Can I be retaliated against for reporting harassment?
California law generally prohibits retaliation for opposing or reporting practices prohibited by FEHA. Retaliation may take many forms, and the facts, timing, and employer’s explanation all matter.
How long do I have to report workplace harassment?
Deadlines vary by claim and procedure. CRD states that, in general, an employment discrimination complaint must be filed within three years from the date of the alleged discriminatory act. Do not assume that a general deadline applies to every situation.
Speak with Janzen Law
If you are experiencing workplace harassment, discrimination, or retaliation in California, Janzen Law can help you understand the issues, preserve relevant information, and evaluate your options.
Janzen Law also advises employers on responding to workplace concerns, maintaining compliant practices, and reducing avoidable employment-law risk.
