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Although employees may use the term “harassment” to describe a conflict with someone at work or an uncomfortable work environment, unlawful harassment has a specific legal meaning.
Harassment is unwanted and unwelcome conduct that is motivated by a legally protected characteristic such as race, gender, national origin, age, or disability. The conduct must be so severe or pervasive that it creates a hostile or offensive work environment. Unlawful harassment is often based on a series of incidents or a pattern of conduct; however, a single incident may constitute unlawful harassment if the conduct is sufficiently severe.
Though most employers are familiar sexual harassment, unlawful harassment can be based on any other protected class in addition to sex.
Harassment is prohibited under both state and federal law, both of which are discussed in more detail throughout this section . The differences between state and federal law may be important if your business is faced with a lawsuit because there are some key differences in terms of liability. However, the aim is to avoid any conduct that could create potential liability in the first place. The line between legal and illegal conduct is often very fine; both state and federal law offer powerful protections to employees.
Federal harassment protections come from several different laws, including Title VII of the Civil Rights Act of 1964 (Title VII), the Americans with Disabilities Act (ADA) and the Age Discrimination in Employment Act (ADEA). Title VII prohibits discrimination based on race, color, religion, sex, or national origin. The ADA protects individuals with disabilities and the ADEA protects against age discrimination. Harassment is considered a form of discrimination under federal case law.1
The Equal Employment Opportunity Commission (EEOC) enforces federal prohibitions against harassment. It defines harassment as “unwelcome conduct that is based on race, color, religion, sex (including sexual orientation, gender identity, or pregnancy), national origin, older age (beginning at age 40), disability, or genetic information (including family medical history). Harassment becomes unlawful where 1) enduring the offensive conduct becomes a condition of continued employment, or 2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.”
Unlike California law, Title VII does not specifically state that employees are protected from harassment based on sexual orientation, but federal case law indicates protection. For example, in a Title VII discrimination case, the United States Supreme Court held that any employment decision based, at least in part, on a person’s sexual orientation or gender identity constitutes unlawful discrimination under Title VII. 2
In California, harassment laws are part of the Fair Employment and Housing Act (FEHA).3 The California Civil Rights Department (CRD) enforces FEHA.
California law draws a distinction between discrimination and harassment, separating them into different categories of claims.4 Discrimination requires an adverse employment action by the employer (e.g., termination, demotion, etc.). Harassment, however, doesn’t require an adverse action, and in the words of the California Supreme Court, “focuses on situations in which the social environment of the workplace becomes intolerable because the harassment (whether verbal, physical, or visual) communicates an offensive message to the harassed employee.”5
According to the CRD, “harassment is behavior intended to disturb or upset that causes for a hostile work environment. A hostile work environment exists when an employee experiences workplace harassment and fears going to work because of the offensive, intimidating, or oppressive atmosphere generated by a harasser.”
Despite some differences in how federal and state law categorize harassment claims, California courts analyze harassment claims in much the same way as the federal courts. Under California law, unlawful harassment is generally unwelcomed or unwanted conduct or behavior directed towards or observed by an employee, based on an employee’s protected class, that is sufficiently severe or pervasive enough to alter the conditions of employment and create a hostile work environment.6
Additionally, in the context of sexual harassment, the courts have defined unique type of harassment called quid pro quo harassment, discussed in more detail later in this section.
Whether conduct is sufficiently severe or pervasive to constitute harassment depends on the totality of the circumstances. California courts use a “reasonable victim” standard to determine if a particular situation constitutes harassment. Courts consider whether a reasonable person in the victim’s position would consider the conduct sufficiently severe or pervasive to create a hostile or abusive working environment.
FEHA prohibits harassment of employees, including unpaid interns, volunteers and contractors, because of any characteristic protected by the FEHA, including:
The FEHA prohibits harassment not only based on individual protected characteristics, but also on any combination of protected characteristics8 — a concept often referred to as intersectionality. In doing so, the California Legislature specifically affirmed a Ninth Circuit Court of Appeals decision recognizing that when an individual alleges discrimination based on multiple protected characteristics, it may be necessary to determine whether discrimination occurred based on the combination of characteristics instead of in isolation.9
Harassment based on the perception of any of these characteristics or any combination of characteristics, or the perception that the person is associated with a person who has, or is perceived to have, any of those characteristics or a combination of those characteristics is also prohibited.
Harassment based on the perception of any of these characteristics is also prohibited.
Harassment may occur in many ways. The types of conduct that may constitute harassment include:10
Read more about each of these protected characteristics in Harassment.
1. See Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986)
2. Bostock v. Clayton Cnty., Georgia, 140 S. Ct. 1731, (2020)
3. Govt. Code sec. 12900 et seq.
4. Govt. Code sec. 12940(a), (j)
5. Roby v. McKesson Corp., 47 Cal. 4th 686 (2009)
6. Caldera v. Dep’t of Corr. & Rehab., 25 Cal. App. 5th 31 (2018)
7. Govt. Code sec. 12940(j)
8. Gov. Code sec. 12926(o)
9. University of Hawai’i, 40 F.3d 1551 (9th Cir. 1994)
10. 2 CCR sec. 11019(b)