SHARE

California Sexual Harassment Laws

June 29, 2023

In employment law, sexual harassment stands out as a critical and widespread issue. This form of misconduct, which is unfortunately still prevalent in many workplaces across the nation, is a subset of sex discrimination that violates Title VII of the Civil Rights Act of 1964 at the federal level and California's Fair Employment and Housing Act (FEHA) at the state level. Within California sexual harassment laws actions or behaviors with a sexual undertone that cultivate a hostile, intimidating, or offensive workplace due to an individual's gender are deemed sexual harassment. Notably, even a singular severe incident can fall under this definition and be categorized as sexual harassment.

Definition of Sexual Harassment

Sexual harassment is generally understood as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance or creates an intimidating, hostile, or offensive work environment.

Prevalence and Impact

In spite of the many workplace sexual harassment cases that have come to light in recent years, the prevalence of sexual harassment in workplaces across California is still a matter of concern. Its impact extends beyond the immediate victims, affecting overall workplace morale, productivity, and even the reputation of businesses.

Purpose and Scope of This Article

This article seeks to provide a detailed exploration of California's sexual harassment laws, with a focus on the Fair Employment and Housing Act (FEHA). The discussion will encompass the legal definitions, employer responsibilities, reporting and addressing mechanisms, and several relevant cases, among other aspects. The objective is to offer a comprehensive understanding of how California law addresses and seeks to prevent sexual harassment in the workplace.

Background

To fully appreciate the nuances of California's approach to sexual harassment, it's essential to understand the broader context in which these laws operate. This includes a brief review of the history of sexual harassment laws in the United States and an introduction to the key federal and state laws that address this issue.

Historical Overview of Sexual Harassment Laws

The legal recognition of sexual harassment as a form of sex discrimination is a relatively recent development in the history of U.S. employment law. It wasn't until the latter half of the 20th century that courts began to acknowledge and address this pervasive issue. The following is a brief overview of this evolution, setting the stage for our discussion on California's laws.

Title VII of the Civil Rights Act of 1964 and Sexual Harassment Law

Title VII of the Civil Rights Act of 1964, a federal law, was a groundbreaking piece of legislation that marked a significant turning point in the fight against workplace discrimination in the United States. The law explicitly prohibits employers from discriminating against employees on several grounds, including sex, race, color, national origin, and religion. This prohibition applies to all aspects of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment.

The prohibition against sex discrimination under Title VII has been particularly influential in shaping the legal landscape of sexual harassment. Initially, the law did not explicitly mention sexual harassment. However, over time, through a series of court decisions, the prohibition against sex discrimination has been interpreted to include sexual harassment. This interpretation has been upheld by the Supreme Court and is now a well-established principle in employment law.

In the context of sexual harassment, Title VII has been instrumental in defining what constitutes unlawful behavior. It recognizes two types of sexual harassment: quid pro quo, where employment decisions are based on an employee's acceptance or rejection of unwelcome sexual behavior, and hostile work environment, where the harassment creates an intimidating, hostile, or offensive working environment.

While Title VII provides a federal framework for addressing sexual harassment, states have the ability to enact their own laws that provide additional protections. In California, the Fair Employment and Housing Act (FEHA) builds upon the foundation laid by Title VII, offering more expansive protections against sexual harassment. This includes a broader definition of what constitutes sexual harassment, a wider range of covered entities, and more robust remedies for victims. The interplay between Title VII and FEHA forms a key part of the discussion in our exploration of "California Sexual Harassment Laws".

California's Fair Employment and Housing Act (FEHA)

At the state level, FEHA is the primary law that addresses sexual harassment in the workplace. It expands upon the protections offered by Title VII, providing broader coverage and more robust remedies for victims of sexual harassment

California's Fair Employment and Housing Act (FEHA)

The Fair Employment and Housing Act (FEHA) is the cornerstone of California's approach to combating sexual harassment in the workplace. This state law expands upon the protections offered by Title VII of the Civil Rights Act of 1964, providing a more comprehensive framework for addressing sexual harassment.

Overview of FEHA

Enacted in 1959, FEHA prohibits discrimination in employment on several grounds, including sex, gender, gender identity, and gender expression. Over the years, the law has been amended and expanded to provide more robust protections for employees. For example, unlike Title VII, which applies to employers with 15 or more employees, FEHA applies to employers with 5 or more full or part-time employees, thus offering protections to a larger number of workers.

FEHA and Sexual Harassment

FEHA explicitly recognizes sexual harassment as a form of sex discrimination. It defines sexual harassment as unwanted sexual advances, or visual, verbal or physical conduct of a sexual nature. This definition includes many forms of offensive behavior and includes gender-based harassment of a person of the same sex as the harasser. This is a more expansive definition than that provided by Title VII, which does not explicitly define sexual harassment.

Comparison with Title VII

While Title VII laid the groundwork for prohibiting sexual harassment in the workplace, FEHA takes it a step further. In addition to applying to a broader range of employers, FEHA also offers more robust remedies for victims. Under FEHA, victims of sexual harassment can seek unlimited compensatory and punitive damages, whereas Title VII imposes caps on damages based on the size of the employer. Furthermore, FEHA provides a more comprehensive definition of what constitutes sexual harassment, including a broader range of behaviors and a more explicit recognition of same-sex harassment.

Unlawful Employment Practices under California Law

California's approach to sexual harassment is codified in the Fair Employment and Housing Act (FEHA), specifically in Section 12940. This section provides a detailed framework for understanding what constitutes unlawful employment practices in the context of sexual harassment.

FEHA, Section 12940

This section of FEHA makes it unlawful for an employer to discriminate against any person in terms of employment or compensation based on various factors, including sex, gender, gender identity, and gender expression. This includes refusing to hire, discharging, or discriminating against a person in compensation or in terms, conditions, or privileges of employment.

Sexual Harassment as Unlawful Employment Practice

Under Section 12940(j), it is unlawful for an employer or any individual to harass an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract because of sex, gender, gender identity, gender expression, among other factors. This includes sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions.

Employer Responsibilities and Liabilities

FEHA doesn't stop at defining what constitutes harassment; section 12940(j) also outlines the responsibilities employers have in preventing such behavior and the liabilities they may face if they fail to do so. If an employer, or anyone acting on behalf of the employer, becomes aware of harassment and doesn't take immediate and appropriate action, they could be held accountable. This applies not only to situations involving employees but also to harassment of job applicants, unpaid interns or volunteers, or persons providing services under a contract by nonemployees in the workplace.

But the responsibility doesn't end with the employers. FEHA goes a step further, holding employees personally accountable for any prohibited harassment they perpetrate, regardless of whether the employer was aware of their actions. This underscores the seriousness with which California law treats sexual harassment, emphasizing that everyone in the workplace has a role to play in preventing such behavior.

Sexual Harassment in Housing under California Law

In addition to sexual harassment in the context of employment, California law also addresses sexual harassment in the context of housing. This is primarily covered under Section 12955 of the Fair Employment and Housing Act (FEHA).

FEHA, Section 12955

This section makes it unlawful to discriminate or harass any person on the basis of sex, gender, gender identity, and gender expression in the context of housing. This includes making any written or oral inquiry concerning these factors of any person seeking to purchase, rent, or lease any housing accommodation.

Sexual Harassment as Housing Discrimination

Under Section 12955, sexual harassment is considered a form of housing discrimination. This can include a landlord making unwelcome sexual advances towards a tenant, a housing provider refusing to rent to someone because of their gender identity, or creating a hostile living environment through inappropriate comments or behavior.

Landlord Responsibilities and Liabilities

Landlords and housing providers have a responsibility to prevent and address sexual harassment in their properties. If they fail to take appropriate action when they know or should have known about the harassment, they could be held liable under Section 12955.

Reporting and Addressing Sexual Harassment in California

California law provides a clear process for reporting incidents of sexual harassment and seeking redress. This process is outlined in the Fair Employment and Housing Act (FEHA), specifically in FEHA, sections 12940 and 12965.

Process for Reporting Sexual Harassment

If an individual experiences harassment in the workplace, they should first consult their company's sexual harassment policy and take action accordingly. This typically involves putting complaints in writing and keeping records of each incident of harassment. The individual should then inform their employer about the harassment, pursuant to the options and requirements set out in the sexual harassment policy. This process is outlined in Section 12940(j)(1) of FEHA.

It is also important to consult an experienced sexual harassment attorney, who can help navigate the complexities of your potential case against your employer.

Role of the CRD and EEOC

The California Civil Rights Department (CRD) and the Federal Equal Employment Opportunity Commission (EEOC) are the primary agencies responsible for enforcing anti discrimination laws in California and across the United States, respectively. Individuals can file a complaint with either agency, and the complaint will be automatically cross-filed with the other agency. More information on filing a complaint can be found on the CRD's website and on the EEOC's website.

Investigation and Potential Outcomes

After a complaint is filed, it will be evaluated and potentially accepted for investigation. If a violation of federal or California law is found, the case will be forwarded to the legal division for mediation and possibly a lawsuit. This process is outlined in Section 12965 of FEHA.

Employer Responsibilities and Training Requirements

Under California law, employers have specific responsibilities and requirements to prevent and address sexual harassment in the workplace. These responsibilities are outlined in the Fair Employment and Housing Act (FEHA), particularly in Section 12940.

Employer Responsibilities under Section 12940

As previously discussed, Section 12940 of FEHA makes it unlawful for an employer to discriminate against or harass an employee on the basis of sex, gender, gender identity, and gender expression, among other factors. This includes the responsibility to take all reasonable steps to prevent harassment from occurring. If an employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action, they could be held liable.

Sexual Harassment Prevention Training

In addition to these responsibilities, California law also requires employers to provide sexual harassment prevention training. According to Section 12950.1 of FEHA, employers with 5 or more employees must provide at least 2 hours of classroom or other effective interactive training and education regarding sexual harassment to all supervisory employees and at least one hour of classroom or other effective interactive training and education regarding sexual harassment to all nonsupervisory employees in California within six months of their assumption of a position.

However, the requirements of Section 12950.1 extend beyond these initial provisions. Here are a few of the additional provisions.

  1. Frequency of Training: After the initial training, each employer covered by this section shall provide sexual harassment training and education to each employee in California once every two years.
  2. Content of Training: The training and education should include information and practical guidance regarding the federal and state statutory provisions concerning the prohibition against and the prevention and correction of sexual harassment and the remedies available to victims of sexual harassment in employment. It should also include practical examples aimed at instructing supervisors in the prevention of harassment, discrimination, and retaliation.
  3. Inclusion of Abusive Conduct and Gender-Based Harassment: The training should also include prevention of abusive conduct and be inclusive of harassment based on gender identity, gender expression, and sexual orientation.
  4. Training for Seasonal and Temporary Employees: For seasonal, temporary, or other employees who are hired to work for less than six months, an employer shall provide training within 30 calendar days after the hire date or within 100 hours worked, whichever occurs first.
  5. Online Training: The department shall develop or obtain two online training courses on the prevention of sexual harassment in the workplace. The course for nonsupervisory employees shall be one hour in length and the course for supervisory employees shall be two hours in length.
  6. Liability and Compliance: Compliance with this section does not insulate the employer from liability for sexual harassment of any current or former employee or applicant. If an employer violates this section, the department may seek an order requiring the employer to comply with these requirements.

Consequences for Noncompliance

Failure to comply with the requirements of the FEHA can result in significant legal consequences. According to Section 12940(j)(1) of the FEHA, employers may be held liable for any harassment prohibited by the Act that is perpetrated by an employee, if the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action.

If an individual believes they have been discriminated against or harassed, they can file a complaint with the Department of Fair Employment and Housing (DFEH). If the DFEH finds the complaint to be valid and the employer fails to resolve the issue, the DFEH may file a civil lawsuit against the employer in court. Penalties for noncompliance can include compensatory damages, punitive damages, and legal costs. The exact penalties would depend on the specifics of the case, including the severity and duration of the harassment, the employer's response to the harassment, and the effect of the harassment on the victim.

For information on how to file a complaint with the DFEH, you can refer to the "File a Complaint" page on the DFEH website: File a Complaint - DFEH

We recommend working with a sexual harassment attorney to navigate this process. Our attorneys are trained to meticulously evaluate your case, guide you through the complex legal landscape, and advocate for your rights, ensuring that you receive the justice and respect you deserve.

California Sexual Harassment Cases of Note

Examining specific cases of sexual harassment can provide valuable insights into how California's laws are applied and enforced. This section will present a few landmark cases that have shaped the interpretation and enforcement of sexual harassment laws in California.

Case 1 - Weeks v. Baker & McKenzie (1998): This case is often cited as a landmark sexual harassment case in California. The plaintiff, Rena Weeks sued her employer, the law firm Baker & McKenzie, for sexual harassment. The jury awarded her $50,000 in compensatory damages from both Martin R. Greenstein, the lawyer at the firm involved in the harassment and Baker & McKenzie. Additionally, Greenstein was ordered to pay $225,000 in punitive damages, and Baker & McKenzie was ordered to pay $3.5 million in punitive damages (reduced from $6.9 million). This case highlighted the responsibility of employers to take measures to prevent and address sexual harassment in the workplace.

Case 2 - Pantoja v. Anton (2011): In the case of Pantoja v. Anton, a California Appellate Court expanded the scope of evidence that can be presented in an employment discrimination and harassment trial. The court held that "me-too" evidence of harassing activity against other female employees, even if it occurred outside the plaintiff's presence and when the plaintiff was not employed, is admissible as evidence of discriminatory or biased motive under California Evidence Code section 1101(b). This ruling allows plaintiffs to use such evidence to establish intent or motive in sexual harassment cases. Subsequent cases have cited Pantoja and recognized the admissibility of "me-too" evidence for purposes other than showing propensity, such as to show intent.

In some cases, courts have rejected the use of "me-too" evidence when it is too broad or unrelated to the specific discrimination claims made by the plaintiff. For instance, in Hatai v. Department of Transportation (2013), the court refused to allow "me-too" evidence that was not directly relevant to the plaintiff's claim of discrimination based on his specific national origin and race, highlighting the importance of presenting evidence that directly aligns with the alleged discrimination.

Case 3 - The Miller v. Department of Corrections (2005): This California case established that pervasive sexual favoritism in the workplace can create a hostile work environment, which is actionable under the Fair Employment and Housing Act (FEHA). The case involved a prison warden who was accused of promoting women with whom he was having affairs, which was seen as demeaning to other female employees.

The California Supreme Court ruled that while isolated instances of favoritism may not support a discrimination claim, widespread sexual favoritism could create a hostile work environment. This ruling emphasized that employers must enforce no-fraternization policies and ensure that promotions are based on merit, not personal relationships.

The impact of this case on California Sexual Harassment Laws was significant as it clarified that widespread sexual favoritism, if severe or pervasive enough, can create a hostile work environment under FEHA. This has reinforced the responsibility of employers to maintain a workplace free from discrimination and to take appropriate action when such behavior is identified.

Each of these cases offers valuable insights into the interpretation and enforcement of California's sexual harassment laws. They highlight the responsibilities of employers, the rights of employees, and the potential consequences of failing to prevent or address sexual harassment in the workplace.

Current Challenges and Areas for Improvement

While California's laws provide robust protections against sexual harassment, there are still challenges in enforcing these laws and ensuring compliance. The following are some of these challenges and potential areas for improvement, with references to specific aspects of California law.

Awareness and Understanding of the Law

Despite the legal protections in place, many employees and employers are not fully aware of their rights and responsibilities under California law. This lack of awareness can lead to violations of the law and can make it difficult for victims of harassment to seek redress. More efforts are needed to educate employers and employees about laws like FEHA and the specific provisions related to sexual harassment.

Reporting and Addressing Harassment

While California law provides a clear process for reporting harassment and seeking redress, many incidents of harassment still go unreported. This can be due to fear of retaliation, lack of trust in the reporting process, or uncertainty about what constitutes harassment. Improvements need to be made in encouraging reporting, ensuring confidentiality, and addressing the concerns of victims.

Enforcement of the Law

Even though California has strong laws in place, enforcement can be a challenge. This can be due to limited resources, difficulties in proving harassment, or lack of cooperation from employers. Strengthening enforcement mechanisms and providing more resources to agencies like the CRD could help address this issue.

Training Requirements

While California has mandatory sexual harassment prevention training for employers with 5 or more employees, there may be room for improvement in the content, frequency, or delivery of this training. Ensuring that the training employers deliver is comprehensive, up-to-date, and effective in preventing harassment is crucial.

Conclusion

California has made significant strides in providing robust protections for employees. From the comprehensive provisions of the Fair Employment and Housing Act (FEHA) to the stringent training requirements for employers, California's approach to sexual harassment is both comprehensive and progressive, but further progress needs to be made.

The challenges in awareness, reporting, enforcement, and training highlight the need for continuous efforts to improve the effectiveness of these laws. It is not enough to have strong laws on paper; these laws need to be effectively enforced and widely understood to truly protect employees from sexual harassment.

---

References

  1. Fair Employment and Housing Act (FEHA), California Government Code Section 12900 et seq. Available at: https://leginfo.legislature.ca.gov/faces/codes_displayexpandedbranch.xhtml?tocCode=GOV&division=3.&title=2.&part=2.8.&chapter=&article=
  2. California Government Code Section 12940. Available at: https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=GOV&sectionNum=12940
  1. California Government Code Section 12950.1. Available at: https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=GOV&sectionNum=12950.1
  1. California Government Code Section 12955. Available at: https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=GOV&sectionNum=12955
  1. California Civil Rights Department (CRD). Available at: https://www.dfeh.ca.gov/
  1. Federal Equal Employment Opportunity Commission (EEOC). Available at: https://www.eeoc.gov/
  1. Weeks v. Baker & McKenzie, 63 Cal. App. 4th 1128 (1998). https://law.justia.com/cases/california/court-of-appeal/4th/63/1128.html
  1. Pantoja v. Anton, 198 Cal. App. 4th 87 (2011). https://casetext.com/case/pantoja-v-anton-2
  1. Miller v. Department of Corrections (2005) https://casetext.com/analysis/california-supreme-court-concludes-widespread-sexual-favoritism-may-create-a-hostile-work-environment

Related Posts

Contact

Law Offices of 
Jeremy Pasternak

Get an answer from our trusted employment law attorneys

  • This field is for validation purposes and should be left unchanged.

San Francisco

354 Pine St, 5th Floor 
San Francisco, CA 94104 
Phone: 415-693-0300 
Fax: 415-693-0393 
Get Directions To Our Office

Los Angeles

707 Wilshire Blvd., Suite 3700
Los Angeles, CA 90017 
Phone: 213-797-5823 
Get Directions To Our Office
© 2024 Jeremy Pasternak. All Rights Reserved.