Harassment in the workplace is illegal under California as well as federal laws. It is a form of discrimination that exhibits a pattern of unwelcome behaviors toward employees, creating a hostile work environment. Often, workplace harassment is behavior that targets employees based on their race, color, religion, sexual orientation, age, disability or gender. Discriminating or harassing someone based on these "protected characteristics" is illegal under state and federal laws.

In California, workplace harassment claims are governed primarily by the Fair Employment and Housing Act (FEHA), codified at California Government Code §12940. FEHA provides significantly broader protections than federal law under Title VII of the Civil Rights Act, covering employers with five or more employees, compared to the 15-employee minimum required for federal Title VII coverage. California's protections also extend to independent contractors, apprentices, and unpaid interns in certain circumstances.

What Constitutes Harassing Behavior?

Harassing behavior is said to occur when someone is forced to work in an offensive environment as a condition of their employment, or, when the offensive behavior is consistent and severe enough to create a hostile work environment. In such situations, it is important to determine when such behavior or patterns of conduct become illegal. For example, an isolated or off-color joke may not rise to the level of harassment as defined by the law. In order to be considered harassment, the behavior or policy must create a hostile work environment that a reasonable person would be unable to tolerate.

In 2019, California passed Senate Bill 1300, which clarified that a single incident, if severe enough, can be sufficient to establish a harassment claim. Harassment does not need to be "pervasive and regular." The conduct must be either severe or pervasive, not necessarily both. This standard is lower and more protective than what federal law requires.

Here are some common examples of such harassing behavior:

• Offensive jokes, racial epithets, name calling
• Verbal or physical assaults such as threats, intimidation or ridicule
• Hurling insults at employees or any other type of behavior that affects an employee's ability to function normally in the workplace
• Sexual slurs, inappropriate touching or soliciting sexual favors

In order to prove harassment or a hostile work environment, it is not required that the employee should have suffered financial loss or have been terminated from his or her job. Employers are required to take the necessary steps to ensure that their workplace is free of harassment. This might include proper training for managers and supervisors and having policies in place that would prevent harassment.

Is the Employer Responsible for Workplace Harassment?

California and federal laws state an employer can be automatically held responsible legally for any harassment in the workplace that causes an employee to suffer financial damages such as lost wages due to wrongful termination or denial of promotion. If a supervisor's behavior creates a hostile environment, an employer can only avoid liability either by showing that they took steps to correct the harassing behavior or that the employee did not make any reasonable attempts to report the behavior or seek to correct the problem through the employer's policies and procedures.

Employers are also responsible for the conduct of employees who are in non-managerial positions. Harassment doesn't pertain only to behavior exhibited by a supervisor. Employees with similar job duties may experience on-the-job harassment that creates a hostile work environment.

California law also imposes mandatory harassment prevention training obligations on employers. Under AB 1825 and Senate Bill 1343 (effective January 1, 2020), any employer with five or more employees must provide: two hours of sexual harassment prevention training to all supervisory employees every two years, and one hour of such training to all non-supervisory employees every two years. An employer's failure to provide mandated training, while not creating automatic liability, is evidence a court may consider when evaluating whether the employer met its duty to prevent and correct harassment.

What Constitutes Sexual Harassment?

Sexual harassment refers to unwelcome sexual advances, demands for sexual favors and other physical or verbal harassment that is sexual in nature. Harassment may not necessarily be sexual in nature. It may also include offensive comments made about a person's sex.

Sexual harassment is often thought of as behavior by a male against a female. But it is important to remember that a person of any sex could be a harasser or a victim. The person harassing could be a direct manager, a supervisor in another department, a co-worker with similar job duties or someone who is not even an employee such as a customer or a client.

Sexual harassment typically falls under two categories:

• Quid Pro Quo Harassment: This is when a supervisor or manager requires or requests that an employee exchange sexual favors in return for career advancement such as a promotion or other benefits.
• Hostile work environment: This is conduct that makes a workplace abusive or intimidating. A hostile work environment is one where the harassment or discrimination is severe, pervasive and offensive.
• Remote and digital workplace harassment: Harassment that occurs through email, Slack, Microsoft Teams, text messages, video calls, or other digital communication tools is equally illegal under California law. As remote and hybrid work arrangements have become more common, courts and the California Civil Rights Department recognize that a hostile work environment can be created entirely through electronic communications, even when employees are never in the same physical location.

Types of Harassment The Could Result in Hostile Work Environment

There are different types of harassing conduct that could end up creating a hostile work environment:

• Sexual harassment: Being sexually harassed at work can be an extremely traumatic experience for employees. This type of harassment often leads to situations where employees are unable to continue working or do their jobs effectively.
• Offensive conduct: This is behavior that could cause someone to feel uneasy or uncomfortable. If victims are targeted for harassment because of protected characteristics such as age, religion, ethnicity or disability, it is against the law. Offensive conduct such as jokes, unwanted touching or gestures can all create a hostile work environment.
• Racial harassment: We hear about this type of harassment in a number of workplaces where employees are targeted because of their skin color, language or religion. When people use derogatory terms, racial slurs or play up racial stereotypes, it could be very hurtful and offensive destroying the morale of the workplace.

California Filing Deadlines for Harassment Claims

Acting within the legal deadlines is critical. Missing a deadline can permanently bar your claim, regardless of how strong it is. California's deadlines were extended by Assembly Bill 9, which took effect January 1, 2020.

Filing an administrative complaint with the CRD and receiving a right-to-sue notice is generally a prerequisite before you can sue in California court for a FEHA violation. Do not wait to consult an attorney, the process has multiple steps, and time passes quickly.

What Damages Can You Recover?

If you prevail on a workplace harassment claim in California, you may be entitled to recover:

• Lost wages and benefits: including back pay for income lost, and front pay if you were forced to resign or were terminated
• Emotional distress damages: California courts recognize that harassment causes significant psychological harm compensable as damages
• Punitive damages: available when an employer's conduct is found to be malicious, oppressive, or fraudulent
• Attorney's fees and costs: under FEHA, a prevailing plaintiff is typically entitled to recover attorney's fees from the employer, making it economically feasible to bring a claim even when monetary losses are modest
• Injunctive relief: a court order requiring the employer to change its practices, implement training, or take other corrective action

Are You the Victim of a Hostile Work Environment?

If you believe you are the victim of a hostile work environment, it is important that you report it in writing to your employer. This will help show that you find the behavior in question offensive. This is particularly important if a co-worker is the one who is engaged in the offensive behavior as opposed to a supervisor. Reporting it will show that the employer knew or should have known that the harassment was occurring. It would be a good idea to check if your employer has a harassment policy in place.

If your employer has a procedure or protocol in place to report, it is important that you follow it. Make sure you document all instances of harassment and take detailed notes about what was being said or done. Save all evidence such as emails, memos or notes in a location other than your office computer. Reach out to an experienced Los Angeles employment lawyer who can help you protect your rights every step of the way.

Your employer has the responsibility to take action as soon as a harassment complaint comes to them. Employers are required to conduct a fair investigation, discipline the harasser or take the steps necessary to end the harassment. It is also illegal for employers to retaliate against an employee who makes a harassment complaint. For victims who need additional information, I have an article I wrote about 10 things that are illegal for your employer to do.

Frequently Asked Questions

Does harassment have to happen more than once to be illegal in California?

Under California law as clarified by SB 1300 in 2019, a single incident can be sufficient to establish a harassment claim if it is severe enough. For example, a physical assault or an extreme racial threat. A pattern of less severe conduct can also qualify if it is pervasive enough to alter the conditions of employment.

Can I be harassed by a co-worker, not just my supervisor?

Yes. Harassment can be committed by supervisors, co-workers, clients, customers, and vendors. Your employer can be held liable for co-worker harassment when it knew or should have known about the conduct and failed to take prompt corrective action.

My employer has fewer than 15 employees. Am I still protected?

Yes. California's FEHA applies to employers with five or more employees, a much lower threshold than the 15-employee minimum required by federal Title VII. Most California workers are covered.

Can I be harassed over email or Slack, does that count?

Yes. Harassment that occurs through email, text messages, video calls, Slack, Teams, or any other digital platform is illegal under California law. Remote and hybrid work does not reduce your legal protections.

Contacting an Experienced Lawyer

If your employer is making working conditions worse for you or is retaliating against you, it is crucial that you contact an experienced Los Angeles hostile work environment attorney right away. You don't have to endure a hostile work environment any more. Call us to find out how we can help you.