In California, sexual harassment is unwelcome conduct at work based on sex. It includes unwanted sexual advances and verbal, physical, and visual harassment. It does not have to be motivated by sexual desire, and you do not have to lose a job benefit to have a claim. In some cases, a single serious incident can be enough.
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What counts as sexual harassment under California law?
California’s Fair Employment and Housing Act (FEHA) makes it unlawful to harass an employee because of sex (Gov. Code § 12940(j)(1)). Harassment because of sex includes sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions (Gov. Code § 12940(j)(4)(C)). California’s regulations say sexual harassment includes verbal, physical, and visual harassment, as well as unwanted sexual advances (Cal. Code Regs., tit. 2, § 11034(f)).
The regulations list these examples of harassment (Cal. Code Regs., tit. 2, § 11019(b)(2)):
- Verbal harassment, such as epithets, derogatory comments, or slurs
- Physical harassment, such as assault, impeding or blocking movement, or any physical interference with normal work or movement
- Visual harassment, such as derogatory posters, cartoons, or drawings
- Sexual favors, such as unwanted sexual advances that condition an employment benefit on an exchange of sexual favors
The first three apply when the conduct is directed at someone on a basis the law protects, such as sex. The list is not complete.
Does sexual harassment have to be motivated by sexual desire?
No. FEHA says “Sexually harassing conduct need not be motivated by sexual desire” (Gov. Code § 12940(j)(4)(C)). The regulations say the same thing: an employer may be liable for sexual harassment even when the conduct was not motivated by sexual desire (Cal. Code Regs., tit. 2, § 11034(f)).
What is the difference between quid pro quo and hostile work environment harassment?
California’s regulations describe two types of sexual harassment (Cal. Code Regs., tit. 2, § 11034(f)):
- Quid pro quo (Latin for “this for that”): explicitly or implicitly conditioning a job or promotion on an applicant’s or employee’s submission to sexual advances or other conduct based on sex.
- Hostile work environment: unwelcome comments or conduct based on sex that unreasonably interfere with an employee’s work performance or create an intimidating, hostile, or offensive work environment.
You do not have to lose a job benefit to have a claim. FEHA says “Loss of tangible job benefits shall not be necessary in order to establish harassment” (Gov. Code § 12940(j)(1)). The regulations say the same thing (Cal. Code Regs., tit. 2, § 11034(f)).
Can one incident be sexual harassment?
In some cases, yes. Under Government Code § 12923, “a single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment if the harassing conduct has unreasonably interfered with the plaintiff’s work performance or created an intimidating, hostile, or offensive working environment.”
Who can be held responsible for sexual harassment?
| Who harassed you | When the employer is liable |
|---|---|
| A supervisor or agent of the employer | The employer is strictly liable, whether or not it knew or should have known of the harassment |
| A coworker who is not an agent or supervisor | If the employer or its agents or supervisors knew or should have known of the harassment and failed to take immediate and appropriate corrective action |
| A non-employee | The employer may be responsible if it or its agents or supervisors knew or should have known of the conduct and failed to take immediate and appropriate corrective action. The extent of the employer’s control over the non-employee is considered |
(Gov. Code § 12940(j)(1); Cal. Code Regs., tit. 2, § 11034(f)(2)(C).) A person who harasses a coworker is also personally liable for the harassment, whether or not the employer knew or should have known of the conduct (Gov. Code § 12940(j)(3); Cal. Code Regs., tit. 2, § 11019(b)(6)).
Do I have to report sexual harassment to my employer first?
California’s regulations say an employee who has been harassed on the job by a coworker should inform the employer, but that failing to give notice is not an affirmative defense (Cal. Code Regs., tit. 2, § 11019(b)(5)). Reporting in writing gives you a record.
Is it illegal for my employer to retaliate if I complain?
Yes. Government Code § 12940(h) makes it unlawful for an employer to “discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.”
What should I do if I’m being sexually harassed at work?
- Write down what happened. Note the dates, times, what was said or done, and who saw it.
- Save what you already have. Keep texts, emails, photos, and messages.
- Report it in writing. Tell your employer what happened and when.
- Get advice early, before deadlines pass.
Frequently asked questions
Does the harasser have to be a different gender than me?
No. An employer may be liable for sexual harassment “regardless of the sex, gender, gender identity, gender expression, or sexual orientation of the perpetrator” (Cal. Code Regs., tit. 2, § 11034(f)(2)(B)).
Does the conduct have to be aimed at me?
Not necessarily. An employer may be liable for sexual harassment even though the offensive conduct was not directed at the person alleging it (Cal. Code Regs., tit. 2, § 11034(f)(2)(B)).
Do I have to lose my job or pay to have a claim?
No. Loss of tangible job benefits is not necessary to establish harassment (Gov. Code § 12940(j)(1); Cal. Code Regs., tit. 2, § 11034(f)).
Can a coworker be held personally responsible?
Yes. An employee who harasses a coworker is personally liable for the harassment, whether or not the employer knew or should have known of the conduct (Gov. Code § 12940(j)(3); Cal. Code Regs., tit. 2, § 11019(b)(6)).