In California, unlawful workplace harassment occurs when a person directs negative, inappropriate, or unwanted conduct at a worker based on certain protected characteristics. Those can include the employee’s race, disability, religion, sex, gender identity, marital status, sexual orientation, or pregnancy, among other reasons.1
In most cases, this harassment must create a hostile work environment to be unlawful. A hostile work environment is one in which harassment occurs that is severe, frequent, or both.2 A few annoying or mildly offensive comments are usually not enough.3
Unlawful harassment in the workplace can take many forms, including:
- Inappropriate jokes, derogatory comments, or innuendo;
- Physical harassment, like unwanted touching or hitting;
- Verbal threats or implied threats;
- Visual harassment, like posters or signs;
- Aggressive or repeated requests for sexual favors;4 and
- Showing favoritism based on a protected characteristic.5
Unlawful workplace harassment can be motivated by many types of meanness, bigotry, or personal gratification.6 At the same time, many workplace behaviors that seem wrong will not amount to unlawful harassment. So, it’s important for employers and employees to know the scope of California’s legal protections against workplace harassment.
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- 1 Which Actions Can Create a Hostile Work Environment?
- 2 Which Characteristics Receive Protection?
- 3 Common Examples of Unlawful Harassment
- 4 The Duty to Create a Harassment-Free Workplace
- 5 Liability for Hostile Work Environments
- 6 Handling Violations of California’s Anti-Harassment Laws
Which Actions Can Create a Hostile Work Environment?
California law prohibits both employers7 and employees8 from harassing any worker, employee, applicant, volunteer, independent contractor, or unpaid intern if that harassment is motivated by certain unlawful reasons, which are discussed in Chapter 2.9
The list of protected characteristics defines which motives are unlawful, but it doesn’t define which actions are unlawful. Unfortunately, there is no bright-line rule that defines which actions constitute “harassment.” Rather, courts have described the concept using very general terms.10
In most harassment cases, the critical question is whether a hostile work environment has been created by the harassment. Hostile work environment harassment is conduct that is so pervasive that a abusive work environment is created. The improper conduct must be severe, frequent, or both.11
As the name implies, hostile work environments only violate the law if the conduct is objectively hostile or abusive. A few annoying or mildly offensive comments are usually not enough.12
The harassment must also subjectively offend, humiliate, or distress the victim.13 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.14 To prove that the victim suffered, they must usually demonstrate one or more of the following:
- The harassment disturbed their emotional tranquility in the workplace,
- The harassment affected their ability to perform her job as usual, or
- The harassment interfered with and undermined their personal sense of well-being.15
Meeting this test usually requires there to be repeated instances of unlawful conduct.16 Although some courts have suggested that one severe violation (like a rape or a physical assault) is enough to support a claim of hostile work environment harassment,17 most cases have required the victim to show a pattern of harassment.18
Courts in California use several factors to determine whether the work environment is sufficiently hostile or abusive:19
- Severity of the Conduct. Conduct that is particularly bad (like nonconsensual physical touching) is more likely to be unlawful than mild conduct. The worse the conduct is, the less frequently it needs to occur in order to meet the threshold of “pervasive” conduct.
- Frequency of the Conduct. Even mild behaviors can be unlawful if they happen frequently enough. Improper activities that happen often are more likely to be considered “pervasive” than those that happen once every other month. Some California courts will even attempt to count or approximate the total number of days on which the conduct occurred.
- Context of the Conduct. Under this factor, all of the circumstances surrounding the harassment can be examined. In some cases, there may be circumstances beyond the improper conduct that make it more or less egregious. For example, the conduct may be less egregious if it only took place outside of the workplace.
The weight of each factor will depend heavily on the facts of the case. And, while these factors are helpful in assessing whether a hostile work environment may be present, it is ultimately the court that makes the determination.
Compare: Quid Pro Quo Sexual Harassment
In sex-related cases, a hostile work environment doesn’t necessarily need to exist before conduct rises to the level of unlawful harassment. A supervisor or coworker can violate the law if they engage in quid pro quo sexual harassment.
“Quid pro quo” is a Latin phrase that means “this for that.”20 Like the name implies, quid pro quo sexual harassment occurs when sexual favors are requested or demanded in exchange for a specific job benefit.21 (E.g., “If you perform a sex act on me, I will give you a raise.”)
Generally, 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;22 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.23
Quid pro quo cases often involve unwanted sexual advances, inappropriate discussions of graphic sexual acts, or commentary on the employee’s body and the sexual uses to which it could be put.24
These kinds of violations can committed either expressly or impliedly. Merely hinting at a job benefit in exchange for sexual favors can constitute quid pro quo sexual harassment.25
Quid pro quo sexual harassment is usually a serious legal violation. Even just one instance of quid pro quo harassment can be enough to bring a lawsuit, as long as a tangible employment action resulted from a refusal to submit to a supervisor’s sexual demands.26
Gender is Irrelevant
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.27 Moreover, harassment is unlawful even when the victim is the same gender as the aggressor.28
In other words, the genders of both the harasser and the victim are irrelevant. The only question is whether the underlying conduct is violated the law.
Which Characteristics Receive Protection?
In California, all overt physical threats and physical assaults are illegal in the workplace.29 Most cases, however, do not involve that kind of blatantly-illegal or criminal conduct. Instead, most workplace harassment is verbal, written, or implied.
Surprisingly, many types of conduct that most people would consider to be “harassment” are perfectly legal in California. To be illegal, the harassment must be motivated by an unlawful reason.30 The worker must be specifically targeted or singled out because of their protected characteristic.31
John supervisors a group of salespeople. John is regularly mean to all of them. His meanness, however, is always motivated by his team’s failure to meet their sales goals. John has likely not engaged in unlawful workplace harassment because he was not motivated by an unlawful reason.32
The rest of this chapter will look at the most common protected characteristics in the context of California’s anti-harassment laws. Of note, although many of the examples refer to “employees” being protected, California’s anti-harassment laws protect nearly all workers, including employees, job applicants, independent contractors, unpaid interns, and volunteers.33
Age-based harassment occurs when a worker over the age of 40 receives less favorable treatment because of their age.34 Both state and federal law prohibit covered employers from harassing a worker because of his or her age, so long as the worker is over the age of 40.35
Race, Color, National Origin, or 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.36 It is also unlawful for employers to harass a worker for their association with members of other races, skin colors, national origins, or ancestries.37
Workers are protected even if they are members of racial groups that have not been traditionally discriminated against (like caucasian workers).38 Some people refer to these types of claims as “reverse discrimination” claims.
Of course, a worker’s ethnicity will not always be readily known by the employer. 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).39 So even if the worker isn’t actually a member of a protected class, it is still unlawful for an employer who believes them to be a member of that group to harass on that basis.
It is unlawful to harass someone for their religious beliefs.40 The phrase religious belief is a broad term that includes all aspects of religious practices.41 Specifically, in can include the following:
- Religious belief: An actual religious belief or perceived belief. A belief in a god, supreme being, or a deity is not required to be considered religious, but something more than a philosophy or way of life is required.42
- Profession of religious belief: Identifying as a believer or practitioner of a particular faith.
- Outward signs of a particular religious belief of practice, including rituals, customs, and manner of dress.43
The test to determine whether a religious belief is a “genuine” one is whether it is sincerely held by the employee.44 It is usually up to the employee, not their employer or a court, to decide what is a tenet of their religious belief, what practices are necessary, or what constitutes religious observation.45
Physical disabilities are the most common type of disability in the workplace. In most cases, 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.46
In general, workers have a right to be free from harassment on the basis of their physical disability.47 There are several ways an employee can show that they suffer from a physical disability. The most common way is to show three things:
- Physical impairment. The employee has an anatomical loss, cosmetic disfigurement, physiological disease, disorder, or condition.
- Major bodily system. The physical impairment affects at least one of the following body systems: neurological, immunological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine.
- Limited Life Activity. The condition limits a major life activity.48
A condition limits a major life activity if it makes the achievement of that activity difficult.49 The phrase “major life activity” is treated broadly. It includes normal social activities, basic life functions (walking, eating, sleeping, etc.), and working.50
A worker can also establish that they have a physical disability by showing:
- That they have any health impairment that requires special education or related services;51
- That they have a record or history of a disease, disorder, condition, cosmetic disfigurement, anatomical loss, or health impairment;52 or
- That their employer has a mistaken belief that the worker has or had a physical disability.53
In addition to the general test described above, California law has specifically included certain conditions as being within the definition of physical disability:
- Missing limbs (whether partial or complete),
- Mobility impairments requiring the use of a wheelchair,
- Cerebral palsy, and
- Chronic or episodic conditions such as HIV/AIDS, hepatitis, epilepsy, seizure disorder, diabetes, multiple sclerosis, and heart and circulatory disease.54
An employee does not have a qualified disability if their condition is mild and temporary.55 Mild conditions are determined on a case-by-case basis. They include conditions that have little or no long-term effects.56 Examples include:
- The common cold,
- Seasonal or common influenza,
- Minor cuts or abrasions,
- Muscle aches,
- Non-migraine headaches, and
- minor and non-chronic gastrointestinal disorders.57
A mental disability, for these purposes, is any mental or psychological condition that limits a major life activity.58
In general, workers have a right to be free from harassment due to their mental disability.59 Likewise, 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.60 Common examples of qualified mental disabilities include:
- Emotional illnesses,
- Mental illnesses,
- Intellectual or cognitive disability,
- Certain learning disabilities,
- Autism spectrum disorders,
- Clinical depression,
- Bipolar disorder,
- Post-traumatic stress disorder, and
- Obsessive compulsive disorder.61
Importantly, California law specifically excludes certain behavioral problems, even though many of them are arguably mental disabilities:
- Compulsive gambling,
- Substance abuse disorders resulting from the current unlawful use of drugs, and
- Certain sexual behavior disorders, like pedophilia, exhibitionism, and voyeurism.62
Notably, transsexual or transgender persons do not have an excluded sexual behavior disorder. California law protects their right to appear or dress consistently with the employee’s gender identity or gender expression.63
A medical condition is defined as any genetic characteristic associated with a disease or a health impairment related to a cancer diagnosis.64 Medical conditions are often an issue with employees who have an increased risk of future health problems.
California law protects employees with medical conditions.65 This means that even though an employee is not currently experiencing symptoms, their employer may not harass against them.
The existence of a medical condition that exposes the employee to an increased risk of future medical problems renders them legally “disabled” for these purposes, and entitles them to protection.
In California, employer may not collect genetic information from an employee or prospective employee to make any decisions regarding that individual’s employment.66
Genetic information may not be acquired from:
- The results of an individual’s genetic test,
- The results of the genetic tests of the individual’s family members,
- The knowledge that a genetic disease has manifested in the individual or a family member,
- Requests to undergo genetic testing or to have a family member go through genetic testing.67
The phrase genetic characteristics refers to:
- A gene, chromosome, or combination of genes known to cause a certain disease or to greatly increase the risk of it, but hasn’t manifested into actual disease,
- Inherited characteristics of a disease or disorder, or a characteristic that makes an individual more likely to develop a disease but hasn’t manifested into disease yet.68
An employer may not fire an employee whose mother has Huntington’s Disease under the assumption that the employee has inherited the disease.
An employer does not have the right to harass against a worker for being single, married, separated, divorced, or widowed.69 Employers are also prohibited from adopting outright bans on hiring married workers at the same place of employment.70
It is not, however, considered harassment or discrimination if an employer decides to regulate married coworkers in the same department to minimize any problems that may occur.71 It is also not discriminatory or harassing behavior to offer bigger benefits packages to those employees with more dependents, such as spouses.72
In California, an employer may not favor, discriminate against, or harass persons based on their sex.73 Sex normally refers to whether a person is biologically a male and female. But the word “sex” in this context is broader than how it is normally used. It can include discrimination based on:
- Pregnancy or medical conditions related to pregnancy,
- Childbirth or medical conditions related to childbirth,
- Breastfeeding or medical conditions related to breastfeeding,
- Physical gender (male, female, intersexed),
- Gender identity, and
- Gender expression.74
In California, it is unlawful for an employer to harass a pregnant employee on the basis of their pregnancy.75 Pregnancy harassment by an employer is always prohibited, regardless of whether the employee is disabled from the pregnancy.
Gender, Gender Identity, or Gender Expression
Employers are prohibited from harassing employees on the basis of their gender, gender identity, or gender expression.76 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.77 Thus, people who are transgender, genderqueer, and gender-fluid are protected against employment harassment in California.
In California, it is unlawful for an employer to harass a person for their sexual orientation.78 The phrase sexual orientation refers specifically to whether a person is heterosexual, homosexual, or bisexual.79 Employers are also prohibited from harassing employees for their perceived sexual orientation.80
An employer covered under the Fair Employment and Housing Act repeatedly belittles a male employee because he “acts gay.” That employer has engaged in unlawful sexual orientation harassment, regardless of whether the employee is actually gay.81
Military or Veteran Status
It is illegal to harass active and veteran military service members.82 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.83
Common Examples of Unlawful Harassment
The tests defining “harassment” can be a little difficult to understand. This is particularly true for hostile work environment claims because there is no clear rule defining which conduct is severe or pervasive. As such, when analyzing an allegation, many courts rely on the fact patterns of prior cases. These examples can help clarify where courts draw the line in determining whether conduct is unlawful.
Unwanted Physical Touching
Unwanted physical touching is generally the clearest type of harassment. Courts have described physical touching as being more offensive than mere words or verbal abuse, in most cases.84 As such, it is more likely that a court will find unlawful harassment has occurred where there is physically touching.
For example, in Rene v. MGM Grand Hotel, Inc., an employee was inappropriately touched on his crotch and anus through his clothing on numerous occasions by his coworkers.85 The court found that this kind of physical conduct was so severe and pervasive that it constituted an objectively abusive working environment.86 It therefore held that the employee had a valid claim of unlawful harassment.
Many cases, however, involve facts that are far less egregious. For example, an occasional touch on the arm or back might not rise to the level of harassment, even though the employee might interpret it as sexual.
In Mokler v. County of Orange, an employee sued her employer for harassment in part because her supervisor had hugged her and, as he did so, he rubbed her breast with his arm.87 The court found that this touching was brief and did not constitute a sufficiently-extreme act of harassment.88 So, although the supervisor’s behavior was rude, inappropriate, and offensive, the employee did not have a valid claim of harassment.89
Unfortunately, courts don’t have a clear line for these kinds of close-call cases. Instead, they weigh the severity and frequency of the touchings.
Perhaps the most common type of harassment comes in the form of derogatory comments. In the real world, these comments are often directed towards women or minorities in the workplace. They might be jokes, insults, slurs, or other types of verbal harassment.90
In California, comments alone, with no physical touching, can be enough to constitute harassment. But the comments usually need to be more than just crude, vulgar, or disparaging to be actionable.91 Rather, like other hostile work environment claims, derogatory comments must be severe or pervasive.92
In one case, for example, an effeminate male restaurant employee was subjected to an unrelenting barrage of derogatory names. He was also repeatedly referred to as a woman and was taunted for behaving like a woman.93 The court held that this kind of verbal abuse was sufficient to establish a valid claim of unlawful harassment.94
In a different case, a male supervisor referred to female employees as “dumb fucking broads” and “fucking cunts.”95 The court noted that the supervisor’s abuse of women in the workplace centered on their gender. Accordingly, the court found that there was “no doubt” that the employee was harassed based on her gender.96
Propositions are also relatively common in the workplace. In general, a single request to go on a date does not amount to harassment.97 There may, however, be a valid claim of harassment if the employee is subjected to repeated advances by the same person or if the employee is punished for rejecting an advance.
In one case, an employee was asked out on a date three or four times by a coworker.98 Each time, the employee rejected the request. Some time later, the coworker described his sexual fantasies about the employee to her.99 Upset, the employee complained to her supervisor about the coworker’s conduct. After that, the coworker began to stare at her angrily several times each day.100
The court in that case held that the coworker’s initial propositions could potentially constitute overt acts of sexual harassment. Likewise, the coworker’s prolonged campaign of staring at the employee could potentially constitute unlawful retaliation.101 An employer in such a situation could be potentially liable for unlawful sexual harassment.
Another clearly-prohibited behavior in California is the offering of employment or employment benefits in exchange for sexual acts. As mentioned above, these kinds of offers or threats are unlawful quid pro quos.102
Importantly, inappropriate propositions do not have to be directly spoken to be unlawful; they can be implied by words or conduct.103 This can occur when a supervisor or other superior implies that their subordinate will get ahead in the workplace through sexual acts.
Favoritism and Unequal Treatment
California law prohibits favoritism based on unlawful motivations.104 In the context of harassment, this kind of discrimination can occur when supervisors reward employees based on their race, gender, religion, or other protected characteristic.
In general, isolated instances of favoritism toward an employee with whom the supervisor is having a sexual affair would not constitute unlawful sexual harassment.105 These situations, however, often blur the line between consensual sexual conduct and job-motivated sexual favors.
When sexual favoritism in a workplace is widespread, it can create an unlawful hostile work environment. In those cases, the demeaning message conveyed to employees is that they are viewed by management as sexual playthings. Or, even worse, the employees may feel that they are required to engage in sexual conduct with their supervisors or the management to get ahead in their job.106
In one such case, two female employees sued their employer for sexual harassment because their supervisor engaged in sexual affairs with three subordinate employees at the same time.107 The supervisor promised and granted unfair employment benefits to the women with whom he was having sex.108 The court held that this conduct could potentially constitute sexual favoritism widespread enough to justify a claim of hostile work environment sexual harassment.109
In each of these cases, it’s important to remember that, in hostile work environment claims, isolated incidents of inappropriate conduct are usually not enough to rise to the level of unlawful harassment.110 This can be true even when the employee experienced several such incidents spread out over multiple years.111
Instead, employees must be able to show a concerted pattern of harassment of a repeated, routine, or a generalized nature.112 Or, if they want to rely on a single incident to support their claim, the incident must usually be extremely severe.113
In one case, for example, an employee sued her employer after her supervisor forced his hand under her sweater and bra to fondle her bare breast.114 The employee required psychological help and even then was unable to successfully return to her job.115
There, the court held that, because the incident occurred on a single occasion for a matter of minutes, it did not impair the employee’s ability to do her job in the long-term. As such, it did not rise to the level of unlawful hostile work environment harassment.116
Of note, however, that case involved an application of federal law. It is possible the outcome would have been different if California law had been applied.
There is a lot of conduct that most people would consider improper but nevertheless may not constitute harassment under the law.117 Simple teasing and offhand comments, for example, will not amount to unlawful conduct unless they are serious or persistent.118
Additionally, different people have different comfort levels when it comes to things like physical touching or jokes in the workplace. A good rule of thumb for employers looking to avoid harassment claims is that it’s best not to engage in or allow any behavior which may be on the line or which you’re not sure an employee would be comfortable with.
The Duty to Create a Harassment-Free Workplace
In California, employers have an duty to create a harassment-free workplace.119 For many employers, this duty involves preventing foreseeable harassment, immediately correcting known harassment, and proactively training employees about harassment.120
Preventing Harassment in the Workplace
An employer violates the law if it allows harassment to occur that could have otherwise been prevented.121 To prove this kind of legal violation, 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.122
Put simply, if an employee has a history of misconduct or a victim of harassment complains about harassment to the employer, the employer must take all reasonable steps necessary to prevent further harassment from occurring.
Sexual Harassment Training
In California, large employers (those who have 50 or more employees) must provide sexual harassment training to all supervisory employees that work within California. The training must last at least two hours and must be completed within six months of the time the employee assumes the supervisory position. It must also be given again to those employees once every two years.123
This two-hour sexual harassment training course must include:
- Information and practical guidance about federal and state laws;
- Information about the prevention and correction of abusive conduct;
- Examples of harassment, discrimination, and retaliation; and
- Information about the remedies available to victims of sexual harassment in employment; and
- Components directed towards the reduction of bullying in general.124
The failure to provide this training to supervisors does not automatically make employers liable for sexual harassment.125 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.
Written Employment Policies
Employers in California are required to develop a written policy regarding the prevention of harassment, discrimination, and retaliation, and distribute that policy to employees.126 The policy is subject to certain specific requirements, including the following:
- The policy must lists all protected categories covered under the California Fair Employment and Housing Act (FEHA);
- It must indicate that the law prohibits coworkers, third parties, supervisors, and managers from engaging in practices unlawful under FEHA;
- It must creates a complaint process;
- It must provide a complaint mechanism that does not require an employee to complain directly to his or her immediate supervisor;
- It must instruct supervisors to report any complaints of misconduct to a designated company representative, such as a human resources manager, so the company can try to resolve the claim internally;
- It must indicate that when an employer receives allegations of misconduct, it will conduct a fair, timely, and thorough investigation that provides all parties appropriate due process and reaches reasonable conclusions based on the evidence collected;
- It must state that confidentiality will be kept by the employer to the extent possible, but it cannot indicate that the investigation will be completely confidential;
- It must indicates that if at the end of the investigation misconduct is found, appropriate remedial measures will be taken; and
- It must make clear that employees shall not be exposed to retaliation as a result of lodging a complaint or participating in any workplace investigation.127
Additionally, 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.128
Employers in California are also 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.129 That notice is also available on the DFEH website.
Liability for Hostile Work Environments
When harassment occurs in the workplace, the victims suffer. To compensate them for their suffering, California law gives many victims the right to recover money from their harassers.130
Many employers believe, incorrectly, that only the person directly harassing another is responsible for paying damages to the employee. While it is true that the individual harassers can be held personally liable for their misconduct,131 employers are often liable as well.
If the harasser is a supervisor or employer, the employer will be strictly liable for the harassment.132 This means that the employer will be required to pay the victim’s damages, even if the employer was not at fault for the harassment and did nothing wrong.
If, on the other hand, the harasser is merely a coworker or other non-supervisory employee, the employer will only be 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.133
This test essentially imposes liability on employers if they were negligent in handling one or more instances of workplace harassment.
Additionally, employers can be liable for harassment even if the harasser is not an employee. But the extent of the employer’s liability may depend on the amount of control they have to prevent the nonemployee’s offending conduct.134
Jane works at a local coffee shop. John, a regular customer, comes into the coffee shop every day and sexually harasses Jane. Jane’s supervisor sees the harassment, but does nothing to prevent it from happening. Jane’s employer could be liable for failing to prevent the sexual harassment.
When a court finds that a person or business is liable for harassment, the consequences can be severe. Among other damages, employers could be subject to the following:
- Paying the employee backpay, contributing to the employee’s retirement funds, or giving the employee other amounts that are meant to compensate them for all the harm caused by the unlawful acts;135
- Paying damages equal to the amount of money the employee may have lost from: an unfair firing, the refusal to promote the employee, or unequal pay;136
- Repaying the employee’s attorney fees;137
- Repaying the employee’s litigation expenses or expert witness fees;138
- Reinstatement of the employee in their job, or paying the employee’s future projected earnings if reinstatement isn’t feasible;139
- Interest on the amounts won as a result of a lawsuit;140
- Compensation for the employee’s emotional pain or suffering;141 and
- Punitive damages meant to punish the employer for their wrongdoing.142
These types of damages are the most common seen in employment cases. If specific facts merit, there may be other types of remedies the employee can pursue.
Handling Violations of California’s Anti-Harassment Laws
Despite the clear requirements of California law, some employers still violate their employees legal rights. Employees that have experienced a violation of their right to be free from workplace harassment have three basic options:
- They can attempt to resolve the dispute informally with their employer,
- They can bring an administrative claim to seek damages, or
- They can file a lawsuit in court.
In selecting one of these paths, employees should remember that they may be entitled to compensatory damages, punitive damages, or, in some cases, reinstatement to their former job.
Of course, each option has benefits and disadvantages, and some situations require employees to try all three approaches. It is often a good idea for employees to discuss their case with an employment lawyer.
Do Employees Need a Lawyer?
Employees are not required to have a lawyer to file a claim against their employer. But it is often a good idea to have one.
The law can be complex and very few cases are straightforward. Even if the facts are strong, an experienced employment law attorney can sometimes help by:
- Collecting all legally-relevant information,
- Applying the law to the evidence and related facts in a compelling way,
- Avoiding the strategic pitfalls many nonlawyers are unfamiliar with, and
- Maximizing the financial damages the employee receives.
Of course, there is no guarantee that a lawyer will be able to accomplish these things. But, when employees handle their legal disputes without representation, there is sometimes an increased risk that they will lose or severely harm their case due to legal missteps that a lawyer would have avoided.
If the employer contests the employee’s claim, which happens often, legal arguments will have to be made and evidence might need to be presented. This might occur in court or with an administrative agency, sometimes according to complicated legal procedures. It can be a good idea to have a lawyer who is familiar with doing those things.
Paying for a Lawyer
In many cases, attorneys are willing to work with no upfront costs on the part of the employee. Instead, they will take a percentage of what the employee wins at the end of the case.
It is also possible that the employer will be required to pay the employees legal fees at the end of the case. Some laws place the burden of those expenses on the employer because it is easier for them to afford it.143
So, although there is no legal requirement that an employee must have an attorney, navigating the claims process can be much easier if the employee has one. Feel free to visit the explanation of our firm’s contingent fee pricing.
State Law Claims Start with a Government Agency
When an employee decides to sue their employer, a coworker, or their supervisor for violating California’s harassment laws, they must first file a written complaint with California’s Department of Fair Employment and Housing (the “DFEH”).144 Employees pursuing a claim related to harassment generally cannot go straight to court with a lawsuit.145
The law treats harassment as a form of discrimination. As such, the process for filing a harassment claim with the DFEH is the same as the process for filing a discrimination complaint with the DFEH. The DFEH complaint process is explained in our article: How to File a Work Discrimination Complaint with California’s DFEH.
If, after a complaint is filed with the DFEH, the claim is not resolved, the employee will be issued a document called a right-to-sue letter.146 The employee may then pursue their case by bringing a lawsuit in court.
The Deadline to File (Statute of Limitations)
Employees are up against strict deadlines when pursuing relief for harassment violations. If the employee is bringing claims under state law, they must file a complaint against the employer with California’s Department of Fair Employment and Housing (the “DFEH”) no later than one year from the date of the alleged violation.147
If the employee has gone through the administrative process and has been issued a right-to-sue letter from the DFEH, the employee with then have one year to file a lawsuit in civil court against the employer.148 This one-year clock starts ticking on the date the right-to-sue letter is issued.
There are, of course, exceptions to these time limits. And employees wishing to pursue relief under federal law may be subject to a different timeline altogether. You should speak with a lawyer immediately if you are unsure whether your claim is time-barred.
Retaliation Is Prohibited
Even though most employers follow the law, employees are often worried about the consequences of pursuing a claim against their employer. Fortunately, employers are legally prohibited from wrongfully terminating or take adverse employment actions against their employees simply because they opposed the employer’s violations of the law.149
Similarly, an employee who has suffered a violation of California’s harassment laws has a right to file a complaint, testify, or assist in any proceeding in a claim against their employer. The employer may not retaliate against them for doing so.150
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Gov. Code, § 12940, subd. (j).Footnote 1
Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 279.Footnote 2
Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 283 [“Although annoying or ‘merely offensive’ comments in the workplace are not actionable, conduct that is severe or pervasive enough to create an objectively hostile or abusive work environment is unlawful, even if it does not cause psychological injury to the plaintiff.”].Footnote 3
Cal. Code Regs., tit. 2, § 11019, subd. (b).Footnote 4
Miller v. Department of Corrections (2005), 30 Cal.Rptr.3d 797, 813.Footnote 5
Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 63.Footnote 6
Gov. Code, § 12940, subd. (j)(4)(A) [“For purposes of this subdivision only, ’employer’ means any person regularly employing one or more persons or regularly receiving the services of one or more persons providing services pursuant to a contract, or any person acting as an agent of an employer, directly or indirectly, the state, or any political or civil subdivision of the state, and cities.”].Footnote 7
Gov. Code, § 12940, subd. (j)(3) [“An employee of an entity subject to this subdivision is personally liable for any harassment prohibited by this section that is perpetrated by the employee, regardless of whether the employer or covered entity knows or should have known of the conduct and fails to take immediate and appropriate corrective action.”].Footnote 8
Gov. Code, § 12940, subd. (j)(1) [“For an employer, labor organization, employment agency, apprenticeship training program or any training program leading to employment, 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. “].Footnote 9
See, e.g., Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 63 [Harassment consists of improper conduct that is engaged in for personal gratification, because of meanness or bigotry, or for other personal motives, and is outside the scope of the harasser’s job].; Reno v. Baird (1998) 18 Cal.4th 640, 646.Footnote 10
Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 279 [“a hostile work environment sexual harassment claim requires a plaintiff employee to show she was subjected to sexual advances, conduct, or comments that were . . . sufficiently severe or pervasive to alter the conditions of her employment and create an abusive work environment”].Footnote 11
Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 283 [“Although annoying or ‘merely offensive’ comments in the workplace are not actionable, conduct that is severe or pervasive enough to create an objectively hostile or abusive work environment is unlawful, even if it does not cause psychological injury to the plaintiff.”].Footnote 12
Fisher v. San Pedro Peninsula Hospital (1989), 214 Cal. App.3d 590, 608.Footnote 13
Meritor Sav. Bank, FSB v. Vinson (1986) 477 U.S. 57, 68 [106 S.Ct. 2399, 2406] [“The gravamen of any sexual harassment claim is that the alleged sexual advances were ‘unwelcome.'”].Footnote 14
Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal. App.3d 590, 608.Footnote 15
Miller v. Department of Corrections (2005) 36 Cal.4th 446, 462 [noting that courts consider the frequency and severity of the harassment, among other factors].Footnote 16
Hughes v. Pair (2009) 46 Cal.4th 1035, 1049 [“employment law acknowledges that an isolated incident of harassing conduct may qualify as ‘severe’ when it consists of ‘a physical assault or the threat thereof.'”].Footnote 17
Lewis v. City of Benicia (2014) 224 Cal.App.4th 1519, 1529.Footnote 18
Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal. App.3d 590, 610 [“The factors that can be considered in evaluating the totality of the circumstances are: (1) the nature of the unwelcome sexual acts or works (generally, physical touching is more offensive than unwelcome verbal abuse); (2) the frequency of the offensive encounters; (3) the total number of days over which all of the offensive conduct occurs; and (4) the context in which the sexually harassing conduct occurred.”].Footnote 19
Cal. Code Regs., tit. 2, § 11034, subd. (f)(1) [“‘Quid pro quo’ (Latin for ‘this for that’) sexual harassment is characterized by explicit or implicit conditioning of a job or promotion on an applicant or employee’s submission to sexual advances or other conduct based on sex.”].Footnote 20
Hughes v. Pair (2009) 46 Cal.4th 1035, 1042 [quid pro quo sexual harassment is “a demand for sexual favors in return for a job benefit”].Footnote 21
Cal. Code Regs., tit. 2, § 11019, subd. (b)(2)(D) [“Harassment includes but is not limited to: . . . Sexual favors, e.g., unwanted sexual advances, which condition an employment benefit upon an exchange of sexual favors.”].Footnote 22
Burlington Indus. v. Ellerth (1998) 524 U.S. 742, 751 [118 S.Ct. 2257, 2264] [“Cases based on threats which are carried out are referred to often as quid pro quo cases, as distinct from bothersome attentions or sexual remarks that are sufficiently severe or pervasive to create a hostile work environment.”].Footnote 23
Cal. Code Regs., tit. 2, § 11019, subd. (b); Mogilefsky v. Superior Court (1993) 20 Cal.App.4th 1409, 1414 [“A cause of action for quid pro quo harassment involves the behavior most commonly regarded as sexual harassment, including, e.g., sexual propositions, unwarranted graphic discussion of sexual acts, and commentary on the employee’s body and the sexual uses to which it could be put.”].Footnote 24
Mogilefsky v. Superior Court (1993) 20 Cal.App.4th 1409, 1414 [“To state a cause of action on this theory, is it sufficient to allege that a term of employment was expressly or impliedly conditioned upon acceptance of a supervisor’s unwelcome sexual advances.”].Footnote 25
Hughes v. Pair (2009) 46 Cal.4th 1035, 1049 [“To establish quid pro quo sexual harassment under these employment laws, a plaintiff must show ‘that a tangible employment action resulted from a refusal to submit to a supervisor’s sexual demands.'”].Footnote 26
Gov. Code, § 12940, subd. (j).Footnote 27
Lewis v. City of Benicia (2014) 224 Cal.App.4th 1519, 1525 [“Under both Title VII and FEHA, sexual harassment can occur between members of the same gender as long as the plaintiff can establish the harassment amounted to discrimination because of sex.”].Footnote 28
See Penal Code, §§ 242, 422.Footnote 29
Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 195 [“In order to prevail under the disparate treatment theory, an employee must show that the employer harbored a discriminatory intent.”].Footnote 30
Gov. Code, § 12940, subd. (j).Footnote 31
See, e.g., CACI No. 2521a [Hostile Work Environment Harassment—Conduct Directed at Plaintiff—Essential Factual Elements—Employer or Entity Defendant (Gov. Code, § 12940(j))].Footnote 32
Gov. Code, § 12940, subd. (j)(1) [“For an employer, labor organization, employment agency, apprenticeship training program or any training program leading to employment, 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.”].Footnote 33
29 U.S.C. §§ 623, 631(a); Gov. Code, §§ 12926, subd. (b) [“‘Age’ refers to the chronological age of any individual who has reached his or her 40th birthday.”], 12940, subd. (j) [employer may not refuse to hire a candidate or discriminate an employee on the basis of race, skin color, national origin, religion, disability, gender, sexual orientation, or age].Footnote 34
Linsley v. Twentieth Century Fox Film Corp. (1999) 75 Cal.App.4th 762, 766 [“Both California and federal law prohibit employers from unlawfully discriminating against employees on the basis of their age.”]; 29 U.S.C. §§ 621–634; Gov. Code, § 12900, et seq.Footnote 35
Gov. Code, § 12940, subd. (j).Footnote 36
Gov. Code, §§ 12926, subd. (o), 12940, subd. (j).Footnote 37
McDonald v. Santa Fe Trail Transp. Co. (1976) 427 U.S. 273, 280 [96 S.Ct. 2574, 2579] [“Title VII prohibits racial discrimination against the white petitioners in this case upon the same standards as would be applicable were they [non-white] . . . .”].Footnote 38
Gov. Code, § 12926, subd. (o) [“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’ includes a perception that the person has any of those characteristics or that the person is associated with a person who has, or is perceived to have, any of those characteristics.”].Footnote 39
Gov. Code, § 12940, subd. (j).Footnote 40
Gov. Code, § 12926, subd. (q) [“‘Religious creed,’ ‘religion,’ ‘religious observance,’ ‘religious belief,’ and ‘creed’ include all aspects of religious belief, observance, and practice, including religious dress and grooming practices. ‘Religious dress practice’ shall be construed broadly to include the wearing or carrying of religious clothing, head or face coverings, jewelry, artifacts, and any other item that is part of the observance by an individual of his or her religious creed. ‘Religious grooming practice’ shall be construed broadly to include all forms of head, facial, and body hair that are part of the observance by an individual of his or her religious creed.”].Footnote 41
Friedman v. Southern California Permanente Medical Group (2002) 102 Cal.App.4th 39, 49 [“A belief in a Supreme Being is not required. [Citations.] But, something more than a philosophy or way of life is required.”].Footnote 42
Gov. Code, § 12926, subd. (q).Footnote 43
California Fair Employment & Housing Com. v. Gemini Aluminum Corp. (2004) 122 Cal.App.4th 1004, 1013 [“The relevant inquiry is the sincerity, not the verity of the employee’s religious beliefs.”].Footnote 44
California Fair Employment & Housing Com. v. Gemini Aluminum Corp. (2004) 122 Cal.App.4th 1004, 1014; Fowler v. Rhode Island (1953) 345 U.S. 67, 70 [73 S.Ct. 526, 527] [“it is no business of courts to say that what is a religious practice or activity for one group is not religion”].Footnote 45
Gov. Code, § 12926, subd. (m)(1); Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 584; Colmenares v. Braemar Country Club, Inc. (2003) 29 Cal.4th 1019, 1026.Footnote 46
Gov. Code, § 12940, subd. (j).Footnote 47
Gov. Code, § 12926, subd. (m)(1).Footnote 48
Gov. Code, § 12926, subd. (m)(1)(B)(ii) [“A physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss limits a major life activity if it makes the achievement of the major life activity difficult.”].Footnote 49
Gov. Code, § 12926, subd. (m)(1)(B)(iii) [“‘Major life activities’ shall be broadly construed and includes physical, mental, and social activities and working.”]; Cal. Code Regs., tit. 2, § 11065, subd. (l)(1) [“Major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working.”].Footnote 50
Gov. Code, § 12926, subd. (m)(2).Footnote 51
Gov. Code, § 12926, subd. (m)(3).Footnote 52
Gov. Code, § 12926, subds. (m)(4), (m)(5).Footnote 53
Cal. Code Regs., tit. 2, § 11065, subd. (d)(2)(C).Footnote 54
Cal. Code Regs., tit. 2, § 11065, subd. (d)(9)(B).Footnote 55
See, e.g., Muller v. Auto. Club of So. Cal. (1998) 61 Cal.App.4th 431, 440–444 [no disability found where employee suffered from a mere temporary anxiety disorder].Footnote 56
Cal. Code Regs., tit. 2, § 11065, subd. (d)(9)(B) [“‘Disability’ does not include: . . . conditions that are mild, which do not limit a major life activity, as determined on a case-by-case basis. These excluded conditions have little or no residual effects, such as the common cold; seasonal or common influenza; minor cuts, sprains, muscle aches, soreness, bruises, or abrasions; non-migraine headaches, and minor and non-chronic gastrointestinal disorders.”].Footnote 57
Gov. Code, § 12926, subd. (j)(1); Cal. Code Regs., tit. 2, § 11065, subd. (d)(1).Footnote 58
Gov. Code, § 12940, subd. (j).Footnote 59
Gov. Code, § 12940, subd. (j)(4), (j)(5).Footnote 60
Cal. Code Regs., tit. 2, § 11065, subd. (d)(1).Footnote 61
Gov. Code, § 12926, subd. (j)(5); Cal. Code Regs., tit. 2, § 11065, subds. (d)(9)(A) [“‘Disability’ does not include: . . . compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from the current unlawful use of controlled substances or other drugs, and “sexual behavior disorders . . . .”], (q).Footnote 62
See Gov. Code, § 12949.Footnote 63
Gov. Code, § 12926, subd. (i); Cal. Code Regs., tit. 2, § 11065, subd. (d)(7).Footnote 64
Gov. Code, § 12940, subd. (j).Footnote 65
Gov. Code, § 12940, subd. (o) [“It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California: . . . For an employer or other entity covered by this part, to subject, directly or indirectly, any employee, applicant, or other person to a test for the presence of a genetic characteristic.”].Footnote 66
Gov. Code, § 12926 subds.(g)(1)–(4); Gov. Code, § 12940, subd. (o).Footnote 67
Gov. Code, § 12926, subd. (g), (i).Footnote 68
Gov. Code, § 12940, subd. (j) [prohibiting harassment on the basis of marital status].Footnote 69
Hope Internat. University v. Superior Court (2004) 119 Cal.App.4th 719, 724 [“[R]egulations governing California’s marital status antidiscrimination laws are clear that marriage between two coworkers is not ipso facto a reason to get rid of one of them.”]; see also id. at p. 743 [“the state civil rights statute impliedly provides that employers cannot have an a priori or automatic rule against married coworkers”].Footnote 70
Gov. Code, § 12940, subd. (a)(3)(A).Footnote 71
Gov. Code, § 12940, subd. (a)(3)(B).Footnote 72
Gov. Code, § 12940, subds. (a), (j).Footnote 73
Gov. Code, § 12926 subd. (r).Footnote 74
Gov. Code, §§ 12926, subd. (r)(1)(A), 12940, subd. (j), 12945.Footnote 75
Gov. Code, § 12940, subd. (j).Footnote 76
Gov. Code, § 12926, subd. (r)(2) [“‘Sex’ also includes, but is not limited to, a person’s gender. ‘Gender’ means sex, and includes a person’s gender identity and gender expression. ‘Gender expression’ means a person’s gender-related appearance and behavior whether or not stereotypically associated with the person’s assigned sex at birth.”].Footnote 77
Gov. Code, § 12940, subd. (j).Footnote 78
Gov. Code, § 12926, subd. (s) [“‘Sexual orientation’ means heterosexuality, homosexuality, and bisexuality.”].Footnote 79
Gov. Code, § 12926, subd. (o).Footnote 80
Gov. Code, §§ 12926, subd. (o), 12940, subd. (j).Footnote 81
Gov. Code, § 12940, subd. (j) [prohibiting employers from harassing on the basis of the “military and veteran status of any person”].Footnote 82
Gov. Code, § 12926, subd. (k).Footnote 83
Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 610 [“generally, physical touching is more offensive than unwelcome verbal abuse”]; Herberg v. California Institute of the Arts (2002) 101 Cal.App.4th 142, 150 [“physical touching generally considered more offensive than mere words”].Footnote 84
Rene v. MGM Grand Hotel, Inc. (9th Cir. 2002) 305 F.3d 1061, 1064.Footnote 85
Rene v. MGM Grand Hotel, Inc. (9th Cir. 2002) 305 F.3d 1061, 1065.Footnote 86
Mokler v. County of Orange (2007) 157 Cal.App.4th 121, 132.Footnote 87
Mokler v. County of Orange (2007) 157 Cal.App.4th 121, 145.Footnote 88
Mokler v. County of Orange (2007) 157 Cal.App.4th 121, 145–146.Footnote 89
Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 280 [“verbal harassment may include epithets, derogatory comments, or slurs on the basis of sex”].Footnote 90
Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 282 [“a hostile work environment sexual harassment claim is not established where a supervisor or coworker simply uses crude or inappropriate language in front of employees or draws a vulgar picture, without directing sexual innuendos or gender-related language toward a plaintiff or toward women in general.”].Footnote 91
Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 283.Footnote 92
Nichols v. Azteca Rest. Enters. (9th Cir. 2001) 256 F.3d 864, 872–873.Footnote 93
Nichols v. Azteca Rest. Enters. (9th Cir. 2001) 256 F.3d 864, 878.Footnote 94
Steiner v. Showboat Operating Co. (9th Cir. 1994) 25 F.3d 1459, 1464.Footnote 95
Steiner v. Showboat Operating Co. (9th Cir. 1994) 25 F.3d 1459, 1464.Footnote 96
Herberg v. California Institute of the Arts (2002) 101 Cal.App.4th 142, 153 [isolated incidents insufficient].Footnote 97
Birschtein v. New United Motor Manufacturing, Inc. (2001) 92 Cal.App.4th 994, 997.Footnote 98
Birschtein v. New United Motor Manufacturing, Inc. (2001) 92 Cal.App.4th 994, 998 .Footnote 99
Birschtein v. New United Motor Manufacturing, Inc. (2001) 92 Cal.App.4th 994, 998.Footnote 100
Birschtein v. New United Motor Manufacturing, Inc. (2001) 92 Cal.App.4th 994, 1002Footnote 101
Hughes v. Pair (2009) 46 Cal.4th 1035, 1042.Footnote 102
Miller v. Department of Corrections (2005) 36 Cal.4th 446, 461 [the prohibition against sexual harassment includes “impliedly conditioning employment benefits on submission to or tolerance of unwelcome sexual advances”].Footnote 103
Gov. Code, § 12940, subd. (a).Footnote 104
Miller v. Department of Corrections (2005) 36 Cal.4th 446, 451.Footnote 105
Miller v. Department of Corrections (2005) 36 Cal.4th 446, 451.Footnote 106
Miller v. Department of Corrections (2005) 36 Cal.4th 446, 466.Footnote 107
Miller v. Department of Corrections (2005) 36 Cal.4th 446, 466.Footnote 108
Miller v. Department of Corrections (2005) 36 Cal.4th 446, 468.Footnote 109
Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 283 [“courts have held an employee generally cannot recover for harassment that is occasional, isolated, sporadic, or trivial”].Footnote 110
Candelore v. Clark County Sanitation Dist. (9th Cir. 1992) 975 F.2d 588, 590.Footnote 111
Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 283.Footnote 112
Brooks v. City of San Mateo (9th Cir. 2000) 229 F.3d 917, 926 [“If a single incident can ever suffice to support a hostile work environment claim, the incident must be extremely severe.”].Footnote 113
Brooks v. City of San Mateo (9th Cir. 2000) 229 F.3d 917, 921.Footnote 114
Brooks v. City of San Mateo (9th Cir. 2000) 229 F.3d 917, 924.Footnote 115
Brooks v. City of San Mateo (9th Cir. 2000) 229 F.3d 917, 927.Footnote 116
See, e.g., Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 283.Footnote 117
Hughes v. Pair (2009) 46 Cal.4th 1035, 1042.Footnote 118
Gov. Code, § 12940, subd. (j)(1) [“Harassment of an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract by an employee, other than an agent or supervisor, shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action.”].Footnote 119
Cal. Code Regs., tit. 2, § 11023, subd. (a) [“Employers have an affirmative duty to take reasonable steps to prevent and promptly correct discriminatory and harassing conduct.”]; Gov. Code, § 12950.1, subd. (a).Footnote 120
Gov. Code, § 12940, subd. (j)(1) [“Harassment of an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract by an employee, other than an agent or supervisor, shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action.”].Footnote 121
Cal. Code Regs., tit. 2, § 11019, subd. (b)(4); Myers v. Trendwest Resorts, Inc. (2007) 148 Cal.App.4th 1403, 1419–1420 [“The employer is liable for harassment by a nonsupervisory employee only if the employer (a) knew or should have known of the harassing conduct and (b) failed to take immediate and appropriate corrective action.”].Footnote 122
Gov. Code, § 12950.1, subd. (a).Footnote 123
Gov. Code, § 12950.1.Footnote 124
Gov. Code, § 12950.1, subd. (d).Footnote 125
Cal. Code Regs., tit. 2, § 11023, subd. (b).Footnote 126
Cal. Code Regs., tit. 2, § 11023, subd. (b).Footnote 127
Gov. Code, § 12950.Footnote 128
Gov. Code, § 12950, subd. (a).Footnote 129
Gov. Code, § 12965, subd. (c); Commodore Home Systems, Inc. v. Superior Court (1982) 32 Cal.3d 211, 215 [“the FEHA does not limit the relief a court may grant in a statutory suit charging employment discrimination”].Footnote 130
Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 62–63 [“it was the intent of the Legislature to place individual supervisory employees at risk of personal liability for personal conduct constituting harassment”].Footnote 131
State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1041 [“the FEHA makes the employer strictly liable for harassment by a supervisor.”].Footnote 132
Gov. Code, § 12940, subd. (j)(1); Hope v. California Youth Authority (2005) 134 Cal.App.4th 577, 588.Footnote 133
Gov. Code, § 12940, subd. (j)(1) [“An employer may also be responsible for the acts of nonemployees, with respect to sexual harassment of employees, applicants, unpaid interns or volunteers, or persons providing services pursuant to a contract in the workplace, where the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing cases involving the acts of nonemployees, the extent of the employer’s control and any other legal responsibility that the employer may have with respect to the conduct of those nonemployees shall be considered.”].Footnote 134
Civ. Code, § 3333 [“For the breach of an obligation not arising from contract, the measure of damages, except where otherwise expressly provided by this code, is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not.”].Footnote 135
Civ. Code, § 3333.Footnote 136
Gov. Code, § 12965, subd. (b) [“In civil actions brought under this section, the court, in its discretion, may award to the prevailing party, including the department, reasonable attorney’s fees and costs, including expert witness fees.”].Footnote 137
Gov. Code, § 12965, subd. (b).Footnote 138
Pollard v. E. I. du Pont de Nemours & Co. (2001) 532 U.S. 843, 846 [121 S.Ct. 1946, 1948, 150 L.Ed.2d 62, 67] [“In cases in which reinstatement is not viable because of continuing hostility between the plaintiff and the employer or its workers, or because of psychological injuries suffered by the plaintiff as a result of the discrimination, courts have ordered front pay as a substitute for reinstatement.”].Footnote 139
Civ. Code, § 3287, subd. (a).Footnote 140
42 U.S.C. § 1981a(b)(3).Footnote 141
Civ. Code, § 3294, subd. (a) [“In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.”].Footnote 142
Gov. Code, § 12965, subd. (b) [“In civil actions brought under this section, the court, in its discretion, may award to the prevailing party, including the department, reasonable attorney’s fees and costs, including expert witness fees.”].Footnote 143
Gov. Code, § 12960, subd. (b).Footnote 144
Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1724; Williams v. City of Belvedere (1999) 72 Cal.App.4th 84, 90 [“Before a person may file a civil complaint alleging a violation of this statute, he or she must first file an administrative claim with the DFEH.”].Footnote 145
Gov. Code, § 12965, subd. (b) [“If a civil action is not brought by the department within 150 days after the filing of a complaint, or if the department earlier determines that no civil action will be brought, the department shall promptly notify, in writing, the person claiming to be aggrieved that the department shall issue, on his or her request, the right-to-sue notice.”].Footnote 146
Gov. Code, § 12960; Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479, 492 [“As for the applicable limitation period, the FEHA provides that no complaint for any violation of its provisions may be filed with the Department ‘after the expiration of one year from the date upon which the alleged unlawful practice or refusal to cooperate occurred . . . .'”].Footnote 147
Gov. Code, § 12965, subd. (d)(2).Footnote 148
Gov. Code, § 12940, subd. (h).Footnote 149
Gov. Code, § 12940, subd. (h).Footnote 150