In California, unlawful workplace sexual harassment occurs when a person directs negative, inappropriate, or unwanted conduct at a worker based on their sex, gender, marital status, sexual orientation, pregnancy, or other sex-related reason.1
Sexual harassment in the workplace can take many forms, including:
- Inappropriate sexual jokes, derogatory comments, or innuendo;
- Physical harassment, like unwanted touching;
- Verbal threats or implied threats of a sexual nature;
- Visual harassment, like posters or signs;
- Aggressive or repeated requests for sexual favors;2 and
- Showing favoritism based on sex.3
At the same time, many workplace behaviors that seem wrong will not amount to unlawful sexual harassment. So, it’s important for employers and employees to know the scope of California’s legal protections against workplace sexual harassment.
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- 1 Sources of Sexual Harassment Law in California
- 2 The Legal Definition of “Sexual Harassment”
- 3 Common Examples of Sexual Harassment
- 4 The Duty to Create a Harassment-Free Workplace
- 5 Sexual Harassment Liability
- 6 Handling Sexual Harassment Violations
Sources of Sexual Harassment Law in California
Workplace sexual harassment in California, like in many states, is a significant problem. In 2016 alone, there were more than 554 administrative complaints filed in California based on employment-related sexual harassment.6 Lawmakers have attempted to curb this epidemic by adopting laws that punish innappropriate sexual behaviors in the workplace.
California employees are protected by three primary sets of laws that prohibit workplace sexual harassment:
- Title VII of the Civil Rights Act of 1964 is a federal law that prohibits discrimination on the basis of, among other things, sex.7 Although Title VII does not explicitly prohibit harassment, courts interpret “discrimination” on the basis of sex to include sexual harassment.8
- The Fair Employment and Housing Act (called “FEHA”)9 is a California state law that governs many types of discrimination and harassment faced by employees, unpaid interns, job applicants, and some independent contractors.10
- The California Constitution prohibits employment discrimination on the basis sex, race, creed, color, nationality, or ethnic origin.11 This is not a traditional route for bringing sexual harassment claims, however, as most are handled under Title VII or FEHA.
Each law provides significantly different protections for employees. In almost all cases, the rules under FEHA are the most protective of employee rights (or equally as protective as Title VII).12 For example, Title VII provides harsh caps on the amount of damages employees can recover in sexual harassment lawsuits,13 while FEHA does not.14
Fortunately for employees, employers in California are required to follow the law that is most protective to employees.17 That means employees can choose to pursue relief under one or more of the laws that benefit them the most.
Most employees choose to pursue their case under FEHA because it is usually the most protective of employee rights. The remainder of this article will focus on employment rights under FEHA, unless otherwise stated.
The Legal Definition of “Sexual Harassment”
California law prohibits both employers18 and employees19 from harassing any worker, employee, applicant, volunteer, independent contractor, or unpaid intern if that harassment is motivated by certain unlawful reasons.20 Those unlawful reasons include the employee’s:
- Gender identity,
- Gender expression,
- Marital status,
- Sexual orientation,
- Childbirth, or
- Pregnancy-related medical conditions.21
This list 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.22
To clarify matters, many courts separate sexual harassment claims into two distinct categories:
- Quid pro quo sexual harassment, and
- Hostile work environment sexual harassment.23
These two categories are not legally-definitive, especially because many situations involve both types of sexual harassment.24 But they help illustrate which actions are prohibited. Both are examined below.
Quid Pro Quo Sexual Harassment
Quid pro quo is a Latin phrase that means “this for that.”25 Like the name implies, quid pro quo sexual harassment occurs when sexual favors are requested or demanded in exchange for a specific job benefit.26 (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;27 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.28
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.29
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.30
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.31
Hostile Work Environment Sexual Harassment
Hostile work environment sexual harassment is conduct that is so pervasive that a abusive work environment is created. This type of harassment is unlawful regardless of whether it is motivated by sexual desire.32 But the improper conduct must be severe, frequent, or both.33
Sexual harassment of this sort only violates the law if the conduct is objectively hostile or abusive. A few annoying or mildly offensive comments are usually not enough.34
The sexual harassment must also subjectively offend, humiliate, or distress the victim.35 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.36 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.37
Meeting this test usually requires there to be repeated instances of unlawful conduct.38 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 sexual harassment,39 most cases have required the victim to show a pattern of harassment.40
Courts in California use several factors to determine whether the work environment is sufficiently hostile or abusive:41
- 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.
Gender is Irrelevant
Workplace sexual harassment laws protect men and women equally (as well as any other gender identifications). As such, sexual harassment perpetrated by women is unlawful to the same extent it would be for men.42
Moreover, sexual harassment is unlawful even when the victim is the same gender as the aggressor.43
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.
Common Examples of Sexual Harassment
The tests defining “sexual 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 sexual harassment. Courts have described physical touching as being more offensive than mere words or verbal abuse, in most cases.44 As such, it is more likely that a court will find unlawful sexual 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.45 The court found that this kind of physical conduct was so severe and pervasive that it constituted an objectively abusive working environment.46 It therefore held that the employee had a valid claim of unlawful sexual harassment.
Many cases, however, involve facts that are far less egregious or less sexual in nature. For example, an occasional touch on the arm or back might not rise to the level of sexual harassment, even though the employee might interpret it as sexual.
In Mokler v. County of Orange, an employee sued her employer for sexual harassment in part because her supervisor had hugged her and, as he did so, he rubbed her breast with his arm.47 The court found that this touching was brief and did not constitute a sufficiently-extreme act of harassment.48 So, although the supervisor’s behavior was rude, inappropriate, and offensive, the employee did not have a valid claim of sexual harassment.49
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.
Sexually Derogatory Comments
Perhaps the most common type of sexual harassment comes in the form of sexually derogatory comments. In the real world, these comments are often directed towards women in the workplace. They might be jokes, insults, slurs, or other types of verbal harassment.50
In California, comments alone, with no physical touching, can be enough to constitute sexual harassment. But the comments usually need to be more than just crude, vulgar, or sexually disparaging to be actionable.51 Rather, like other hostile work environment claims, sexually derogatory comments must be severe or pervasive.52
In one case, for example, an effeminate male restaurant employee was subjected to an unrelenting barrage of sexually derogatory names. He was also repeatedly referred to as a woman and was taunted for behaving like a woman.53 The court held that this kind of verbal abuse was sufficient to establish a valid claim of sexual harassment.54
In a different case, a male supervisor referred to female employees as “dumb fucking broads” and “fucking cunts.”55 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 sexually harassed.56
Both of these cases show how abusive conduct can become unlawful when it specifically targets a person because of characteristics related to their gender.
Propositions are also relatively common in the workplace. In general, a single request to go on a date does not amount to sexual harassment.57 There may, however, be a valid claim of sexual 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.58 Each time, the employee rejected the request. Some time later, the coworker described his sexual fantasies about the employee to her.59 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.60
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.61 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.62
Importantly, inappropriate propositions do not have to be directly spoken to be unlawful; they can be implied by words or conduct.63 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 sex-based discrimination.64 In the context of sexual harassment, this kind of discrimination can occur when supervisors reward employees with whom they are having sex or punish those who refuse to have sex with them.
In general, isolated instances of favoritism toward an employee with whom the supervisor is having a sexual affair would not constitute unlawful sexual harassment.65 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.66
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.67 The supervisor promised and granted unfair employment benefits to the women with whom he was having sex.68 The court held that this conduct could potentially constitute sexual favoritism widespread enough to justify a claim of hostile work environment sexual harassment.69
At least one court has held that persistently staring at an employee in a sexual manner can justify a hostile work environment sexual harassment claim.
In one case, an employee made repeated complaints to her employer that her supervisor was staring at her breasts.70 The inappropriate staring continued for more than two years. The court held that, in some cases, persistently staring or leering in the workplace can constitute unlawful sexual harassment.71
It should be noted, however, that these kinds of cases can be very hard to prove. Juries and judges may be very skeptical that mere looks are sexual in nature, without additional evidence of sexual misconduct.
In each of these cases, it’s important to remember that, in hostile work environment claims, isolated incidents of sexually-charged conduct are usually not enough to rise to the level of unlawful sexual harassment.72 This can be true even when the employee experienced several such incidents spread out over multiple years.73
Instead, employees must be able to show a concerted pattern of harassment of a repeated, routine, or a generalized nature.74 Or, if they want to rely on a single incident to support their claim, the incident must usually be extremely severe.75
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.76 The employee required psychological help and even then was unable to successfully return to her job.77
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 sexual harassment.78
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 sexual harassment under the law.79 Simple teasing and offhand comments, for example, will not amount to unlawful conduct unless they are serious or persistent.80
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 sexual 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.81 For many employers, this duty involves preventing foreseeable sexual harassment, immediately correcting known harassment, and proactively training employees about sexual harassment.82
Sexual Harassment Prevention
An employer violates the law if it allows sexual harassment to occur that could have otherwise been prevented.83 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.84
Put simply, if an employee has a history of sexual misconduct or a victim of harassment complains about sexual harassment to the employer, the employer must take all reasonable steps necessary to prevent further sexual 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.85
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.86
The failure to provide this training to supervisors does not automatically make employers liable for sexual harassment.87 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 sexual harassment, discrimination, and retaliation, and distribute that policy to employees.88 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.89
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.90
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.91 That notice is also available on the DFEH website.
Sexual Harassment Liability
When sexual 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.92
Many employers believe, incorrectly, that only the person directly sexually 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,93 employers are often liable as well.
If the harasser is a supervisor or employer, the employer will be strictly liable for the harassment.94 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.95
This test essentially imposes liability on employers if they were negligent in handling one or more instances of workplace sexual harassment.
Additionally, employers can be liable for sexual 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.96
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 sexual 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;97
- 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;98
- Repaying the employee’s attorney fees;99
- Repaying the employee’s litigation expenses or expert witness fees;100
- Reinstatement of the employee in their job, or paying the employee’s future projected earnings if reinstatement isn’t feasible;101
- Interest on the amounts won as a result of a lawsuit;102
- Compensation for the employee’s emotional pain or suffering;103 and
- Punitive damages meant to punish the employer for their wrongdoing.104
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 Sexual Harassment Violations
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 sexual 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.105
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 sexual harassment laws, they must first file a written complaint with California’s Department of Fair Employment and Housing (the “DFEH”).106 Employees pursuing a claim related to sexual harassment generally cannot go straight to court with a lawsuit.107
The law treats sexual harassment as a form of sex discrimination. As such, the process for filing a sexual 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.108 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 sexual 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.109
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.110 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.111
Similarly, an employee who has suffered a violation of California’s sexual 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.112
The Next Step: Talk to a Lawyer
Employees who experience legal violations in the workplace should never have to suffer alone. Having an attorney on your side can provide important benefits. In many cases, there are no upfront costs to hire a lawyer—they will instead take a percentage of whatever they can win for you.
If you have been the victim of a workplace sexual harassment, give our California lawyers a call at (310) 340-7677.
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Tell our lawyers your side of the story and find out how we can help.
Gov. Code, § 12940, subd. (j)(1), (j)(4)(C) [“For purposes of this subdivision, ‘harassment’ because of sex includes sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions.”].Footnote 1
Cal. Code Regs., tit. 2, § 11019, subd. (b).Footnote 2
Miller v. Department of Corrections (2005), 30 Cal.Rptr.3d 797, 813.Footnote 3
Gov. Code, § 12940, subd. (j)(4)(C) [“Sexually harassing conduct need not be motivated by sexual desire.”]; Miller v. Department of Corrections (2005) 36 Cal.4th 446, 469 [“it is clear under California law that a plaintiff may establish a hostile work environment without demonstrating the existence of coercive sexual conduct directed at the plaintiff or even conduct of a sexual nature.”]; EEOC v. Nat’l Educ. Ass’n (9th Cir. 2005) 422 F.3d 840, 844 [“The Supreme Court has held that ‘harassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex.'”].Footnote 4
Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 63.Footnote 5
Dept. of Fair Employment & Housing, 2016 Annual Report (2016) available here.Footnote 6
42 USCS § 2000e-2(a)(1).Footnote 7
Meritor Sav. Bank, FSB v. Vinson (1986) 477 U.S. 57, 64 [106 S.Ct. 2399, 2404] [“Without question, when a supervisor sexually harasses a subordinate because of the subordinate’s sex, that supervisor “discriminate[s]” on the basis of sex.”].Footnote 8
Gov. Code, § 12900 et seq.Footnote 9
Gov. Code, § 12940, subd. (j)(1).Footnote 10
Cal. Const., art. I, § 8 [“A person may not be disqualified from entering or pursuing a business, profession, vocation, or employment because of sex, race, creed, color, or national or ethnic origin.”].Footnote 11
See State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1040 [noting that, unlike FEHA, “Title VII lacks specific language on sexual harassment”].Footnote 12
42 U.S.C. § 1981a(a)–(d).Footnote 13
Gov. Code, § 12965, subd. (c) [“A court may grant as relief in any action filed pursuant to subdivision (a) any relief a court is empowered to grant in a civil action brought pursuant to subdivision (b), in addition to any other relief that, in the judgment of the court, will effectuate the purpose of this part.”].Footnote 14
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 15
42 U.S.C. § 2000e(b).Footnote 16
Bohemian Club v. Fair Employment & Hous. Comm. (1986) 187 Cal.App.3d 1, 17 [finding that FEHA is not preempted by Title VII].Footnote 17
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 18
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 19
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 20
Gov. Code, § 12940, subd. (j)(1), (j)(4)(C) [“For purposes of this subdivision, ‘harassment’ because of sex includes sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions.”].Footnote 21
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 22
Meritor Sav. Bank, FSB v. Vinson (1986) 477 U.S. 57, 65 [106 S.Ct. 2399, 2404]; see also Cal. Code Regs., tit. 2, § 11034, subd. (f).Footnote 23
Cal. Code Regs., tit. 2, § 11019, subd. (b)(2) [including both categories under the definition of “harassment”]; see also Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 706, fn. 8 [noting that quid pro quo sexual harassment was simply a subcategory of sexual harassment generally].Footnote 24
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 25
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 26
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 27
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 28
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 29
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 30
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 31
Gov. Code, § 12940, subd. (j)(4)(C) [“Sexually harassing conduct need not be motivated by sexual desire.”].Footnote 32
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 33
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 34
Fisher v. San Pedro Peninsula Hospital (1989), 214 Cal. App.3d 590, 608.Footnote 35
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 36
Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal. App.3d 590, 608.Footnote 37
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 38
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 39
Lewis v. City of Benicia (2014) 224 Cal.App.4th 1519, 1529.Footnote 40
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 41
Gov. Code, § 12940, subd. (j).Footnote 42
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 43
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 44
Rene v. MGM Grand Hotel, Inc. (9th Cir. 2002) 305 F.3d 1061, 1064.Footnote 45
Rene v. MGM Grand Hotel, Inc. (9th Cir. 2002) 305 F.3d 1061, 1065.Footnote 46
Mokler v. County of Orange (2007) 157 Cal.App.4th 121, 132.Footnote 47
Mokler v. County of Orange (2007) 157 Cal.App.4th 121, 145.Footnote 48
Mokler v. County of Orange (2007) 157 Cal.App.4th 121, 145–146.Footnote 49
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 50
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 51
Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 283.Footnote 52
Nichols v. Azteca Rest. Enters. (9th Cir. 2001) 256 F.3d 864, 872–873.Footnote 53
Nichols v. Azteca Rest. Enters. (9th Cir. 2001) 256 F.3d 864, 878.Footnote 54
Steiner v. Showboat Operating Co. (9th Cir. 1994) 25 F.3d 1459, 1464.Footnote 55
Steiner v. Showboat Operating Co. (9th Cir. 1994) 25 F.3d 1459, 1464.Footnote 56
Herberg v. California Institute of the Arts (2002) 101 Cal.App.4th 142, 153 [isolated incidents insufficient].Footnote 57
Birschtein v. New United Motor Manufacturing, Inc. (2001) 92 Cal.App.4th 994, 997.Footnote 58
Birschtein v. New United Motor Manufacturing, Inc. (2001) 92 Cal.App.4th 994, 998 .Footnote 59
Birschtein v. New United Motor Manufacturing, Inc. (2001) 92 Cal.App.4th 994, 998.Footnote 60
Birschtein v. New United Motor Manufacturing, Inc. (2001) 92 Cal.App.4th 994, 1002Footnote 61
Hughes v. Pair (2009) 46 Cal.4th 1035, 1042.Footnote 62
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 63
Gov. Code, § 12940, subd. (a).Footnote 64
Miller v. Department of Corrections (2005) 36 Cal.4th 446, 451.Footnote 65
Miller v. Department of Corrections (2005) 36 Cal.4th 446, 451.Footnote 66
Miller v. Department of Corrections (2005) 36 Cal.4th 446, 466.Footnote 67
Miller v. Department of Corrections (2005) 36 Cal.4th 446, 466.Footnote 68
Miller v. Department of Corrections (2005) 36 Cal.4th 446, 468.Footnote 69
Billings v. Town of Grafton (1st Cir. 2008) 515 F.3d 39.Footnote 70
Billings v. Town of Grafton (1st Cir. 2008) 515 F.3d 39, 50.Footnote 71
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 72
Candelore v. Clark County Sanitation Dist. (9th Cir. 1992) 975 F.2d 588, 590.Footnote 73
Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 283.Footnote 74
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 75
Brooks v. City of San Mateo (9th Cir. 2000) 229 F.3d 917, 921.Footnote 76
Brooks v. City of San Mateo (9th Cir. 2000) 229 F.3d 917, 924.Footnote 77
Brooks v. City of San Mateo (9th Cir. 2000) 229 F.3d 917, 927.Footnote 78
See, e.g., Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 283.Footnote 79
Hughes v. Pair (2009) 46 Cal.4th 1035, 1042.Footnote 80
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 81
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 82
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 83
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 84
Gov. Code, § 12950.1, subd. (a).Footnote 85
Gov. Code, § 12950.1.Footnote 86
Gov. Code, § 12950.1, subd. (d).Footnote 87
Cal. Code Regs., tit. 2, § 11023, subd. (b).Footnote 88
Cal. Code Regs., tit. 2, § 11023, subd. (b).Footnote 89
Gov. Code, § 12950.Footnote 90
Gov. Code, § 12950, subd. (a).Footnote 91
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 92
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 93
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 94
Gov. Code, § 12940, subd. (j)(1); Hope v. California Youth Authority (2005) 134 Cal.App.4th 577, 588.Footnote 95
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 96
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 97
Civ. Code, § 3333.Footnote 98
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 99
Gov. Code, § 12965, subd. (b).Footnote 100
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 101
Civ. Code, § 3287, subd. (a).Footnote 102
42 U.S.C. § 1981a(b)(3).Footnote 103
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 104
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 105
Gov. Code, § 12960, subd. (b).Footnote 106
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 107
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 108
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 109
Gov. Code, § 12965, subd. (d)(2).Footnote 110
Gov. Code, § 12940, subd. (h).Footnote 111
Gov. Code, § 12940, subd. (h).Footnote 112