Sexual Harassment in California

As in every other state, California employees who are sexually harassed can bring a claim in federal courts under Title VII of the Civil Rights Act (CRA) of 1964. Title VII makes it illegal to “fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment” because of her sex. The Act also defines discrimination based on pregnancy, childbirth, or related medical conditions as discrimination on the basis of sex.

A claim must be filed with the Equal Employment Opportunity Commission (EEOC) before bringing suit in a federal court. The EEOC defines sexual harassment as unwanted physical touching, requests for sexual favors, and other unwanted sexual conduct when an employee’s submission to or rejection of such advances affects her employment status, or where those advances create an “intimidating, hostile, or offensive work environment” for the affected employee. (29 C.F.R. § 1604.11)
Elements of a Hostile Work Environment Claim Under FEHA
California courts have applied the federal definition of hostile work environment to the Fair Employment and Housing Act (FEHA). Thus, in California, the elements of hostile work environment sexual harassment are:
1) the plaintiff belongs to a protected group
2) the plaintiff was subject to unwelcome sexual harassment
3) the harassment complained of was based on sex
4) the harassment complained of was sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment, and
5) respondeat superior [the employer can be held accountable for the employee’s harassment].[1]
California Law vs. Federal Civil Rights Act
California has classified sexual harassment as an illegal form of sex discrimination under the California Constitution and the Fair Employment and Housing Act (FEHA). The California constitution provides, “A person may not be disqualified from entering or pursuing a business, profession, vocation, or employment because of sex.”[2] Like the federal CRA, FEHA provides that it is an unlawful employment practice to refuse to hire, train or employ a person, or to “discriminate against the person in compensation or in terms, conditions, or privileges of employment” based on or “because of . . . sex.”
However, there are several ways in which sexual harassment law in California diverges from federal anti-discrimination law.
Harassment vs. Discrimination
FEHA differs from federal law by explicitly prohibiting harassment, in addition to discrimination, because of an employee’s sex or gender, marital status, sexual orientation, or gender identity or expression. California law creates two distinct causes of action for employees who have been treated unfairly because of sex: one for harassment and one for discrimination.[3] Thus, when an employer’s harassing or degrading conduct could be viewed as discrimination, or when there may be disparate treatment in addition to harassment, plaintiffs should consider bringing a claim under both causes of action to increase their chances of success.
Protected Classes
However, Unlike the federal law, FEHA also prohibits employers from discriminating against or harassing employees based on marital status, gender, gender identity, gender expression, or sexual orientation. Thus, the classes of persons protected under California law are much broader than those protected under federal law. In fact, the courts have held, “The public policy underlying the FEHA is to prohibit harassment and discrimination in employment on the basis of any protected classification.”[4]
Scope of Liability
Under FEHA, employers are strictly liable for sexual harassment by a supervisor, as long as the harassment occurs within the work sphere and does not stem from private relationship unconnected to the employment.[5] The law specifically extends liability for sexual harassment by nonemployees, as long as the employer “kn[e]w or should have known of the conduct” and failed to take steps to correct the situation.[6]
Additionally, California law was updated in 2000 to hold individual employees personally liable for harassment, regardless of whether the employer knew or should have known about the employee’s abuse.[7] This change in the law was seen as a significant step forward for efforts to deter workplace sexual harassment in California by increasing the legal remedies available to victims.
Employer Training and Awareness
California law makes it the responsibility of every employer to ensure a workplace free of sexual harassment, by taking all reasonable steps to prevent harassment from occurring, including maintaining adequate sexual harassment training policies, and by ensuring that all employees have access to information about sexual harassment, including what it is, that it is illegal, and available remedies for employees who have been harassed.[8]
Filing a Sexual Harassment Complaint
Similar to the federal scheme, an employee who believes she has been sexually harassed may file a complaint of discrimination with California’s state equal employment agency, the Fair Employment and Housing Commission (FEHC).[9] The complaint should be filed within one year of the harassing conduct.[10] The complaint could ultimately lead to public hearings or a lawsuit filed by the FEHC on the victim’s behalf. If harassment is found to have occurred, the Commission can order up to $150,000 in fines against an employer and the harasser(s), and other remedies such as reinstatement and back pay.[11] The FEHC defines sexual harassment as unwanted sexual advances, or visual, verbal or physical conduct of a sexual nature.[12] Alternatively, a victim can seek a right to sue notice from the FEHC and file a sexual harassment suit under the FEHA in state court without asking the FEHC to investigate on her behalf.[13]

[1] Garcia v. Los Banos Unified Sch. Dist., 418 F. Supp. 2d 1194, 1223 (E.D. Cal. 2006) (citing Fisher v. San Pedro Peninsula Hosp., 214 Cal. App. 3d 590, 608 (Cal. Ct. App. 1989)).
[2] Cal. Const. art. I, § 8.
[3]Miller v. Dep't of Corr., 36 Cal. 4th 446, 115 P.3d 77, n. 5 (2005) (“[C]laims for sexual discrimination and sexual harassment are distinct causes of action, each arising from different provisions of the FEHA.”)
[4] Fiol v. Doellstedt, 50 Cal. App. 4th 1318, 1324, 58 Cal. Rptr. 2d 308, 311 (1996) (citing Matthews v. Superior Court, 34 Cal. App. 4th 598, 602, 40 Cal. Rptr. 2d 350, 353 (1995)) (emphasis added). 
[5] Myers v. Trendwest Resorts, Inc., 148 Cal. App. 4th 1403, 1421, 56 Cal. Rptr. 3d 501, 513 (2007).
[10] Id.
[11] Id.
[12] Id.
[13] Government Code § 12965 requires exhaustion of administrative remedies.