California
Overview
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Harassment and discrimination based on a protected characteristic are prohibited under both federal and state law. The federal government and most state governments have agencies that help employers and employees understand these legal requirements and ensure compliance with the laws.
Protected Characteristics
Harassment or discrimination based on any characteristic set forth below is prohibited in California.
Federal
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race
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color
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national origin
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sex (including pregnancy, sexual orientation and gender identity)
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gender expression
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disability
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genetic information (including family medical history)
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religion
- age (40 and older)
- military or other uniformed service
California
- age (40 and older)
- ancestry
- color
- gender (including gender identity and expression)
- genetic information
- marital status
- medical condition (as defined by applicable law including cancer)
- mental or physical disability (including HIV and AIDS disabilities)
- national origin
- religion or creed
- reproductive health decision-making
- pregnancy (including childbirth breastfeeding or related medical condition)
- sex
- sexual orientation
- race (inclusive of traits associated with race, including, but not limited to, hair texture and protective hairstyles)
- military and veteran status
Important Notes
In addition to the general protected characteristics listed above, some federal, state, and/or local laws also prohibit employment discrimination on the basis of other protected statuses in certain contexts, such as:
citizenship status or work authorization status,
emergency volunteer status,
family relationship with a co-worker, and/or
status based on information contained in criminal, background, or credit reports, or being subject to wage garnishments.
Likewise, some federal, state, and/or local laws prohibit discrimination, harassment, and/or retaliation for exercising certain legal rights such as:
participating in collective bargaining or union activities,
serving as a whistleblower pursuant to whistleblower laws,
filing a worker’s compensation or unemployment claim,
taking protected time off or protected leave,
engaging in certain off-duty activities.
Finally, under federal law and some state and/or local laws, employers may not limit or prohibit employees from using any languages in the workplace unless there is a business necessity for the restriction.
Note also that some federal, state, and/or local laws provide additional, separate standards and remedies for certain prohibited conduct, such as laws addressing equal pay without regard to sex or other protected category or specifically addressing sexual harassment prevention measures.
Applicable Laws
Federal
The primary federal laws that prohibit employment discrimination include Title VII of the 1964 Civil Rights Act, The Age Discrimination in Employment Act, The Americans With Disabilities Act, The Equal Pay Act, The Uniformed Services and Employment and Reemployment Act, The Immigration and Nationality Act, and The Genetic Information Nondiscrimination Act.
The U.S. Supreme Court held that Title VII protects individuals from employment discrimination on the basis of sexual orientation and gender identity or expression. Bostock v. Clayton County, Georgia, No. 17-1618 (U.S. June 15, 2020).
California
The primary state law prohibiting employment discrimination, including harassment, is the CA Fair Employment and Housing Act.
Sexual Harassment under Title VII
Sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964. Sexual harassment occurs when unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature affects a person’s employment, unreasonably interferes with their work performance, or creates an intimidating, hostile, or offensive work environment.
Sexual harassment can happen in a variety of circumstances:
- The victim as well as the harasser may be a woman or a man.
- The victim does not have to be of the opposite sex.
The harasser can be the victim’s supervisor, a supervisor in another area, a co-worker, or someone who isn’t an employee, such as a client or a person who provides services to the company. - The victim does not have to be the person harassed. Anyone affected by the offensive conduct can be a victim of harassment.
- Unlawful sexual harassment may occur without the victim suffering economic harm or losing their job.
- The harasser’s conduct must be unwelcome.
California Definition of Sexual Harassment
California law defines sexual harassment as unwanted sexual advances, or visual, verbal, or physical conduct of a sexual nature, which includes many forms of offensive behavior, and gender-based harassment of a person of the same sex as the harasser.
The following is a partial list of prohibited behavior:
Visual conduct: leering, making sexual gestures, displaying sexually suggestive objects or pictures, cartoons, or posters.
Verbal conduct: making or using derogatory comments, epithets, slurs, and jokes; verbal abuse of a sexual nature; graphic verbal commentaries about an individual’s body; using sexually degrading words to describe an individual.
Physical conduct: touching, assault, impeding, or blocking movements.
Offering employment benefits in exchange for sexual favors.
Making or threatening retaliatory action after receiving a negative response to sexual advances.
Source: California Civil Rights Department, Sexual Harassment FAQs
Proof Requirements in Sexual Harassment Cases Under California Law
In California, the proof requirements in sexual harassment cases brought under California state law are lower than that required under federal law, as follows:
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Single Incident May Be Sufficient. In determining whether conduct is sufficiently severe or pervasive to constitute a violation of the California Fair Employment and Housing Act, California law now makes clear that a single incident of harassing conduct may be sufficient to create a hostile work environment if the harassing conduct has unreasonably interfered with a person’s work performance or created an intimidating, hostile, or offensive working environment.
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“Stray Remark.” The existence of a hostile work environment depends upon the totality of the circumstances, and a discriminatory remark, even if not made directly in the context of an employment decision or uttered by a non-decision maker, may be relevant, circumstantial evidence of discrimination.
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An Effect on “Tangible Productivity” Is Not Necessary. A plaintiff does not need to prove that his or her tangible work productivity declined due to the harassment—only that the harassment made it “more difficult to do the job.”
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Type of Workplace. The legal standard for sexual harassment should not vary by type of workplace. It is irrelevant that a particular occupation may have been characterized by a greater frequency of sexually related commentary or conduct in the past.
Retaliation Prohibited
Employer retaliation against an employee who files a discrimination or harassment complaint or is involved in the complaint process is unlawful.
How to File a Claim in California
Employees may file formal complaints of discrimination, harassment, or retaliation with the agencies listed below. If you wish to pursue filing with these agencies, you should contact them directly to obtain further information about their processes and time limits.
California Civil Rights Department
An employment discrimination or harassment claim against an employer may be filed with the California Civil Rights Department (CRD).
Equal Employment Opportunity Commission
An employment discrimination or harassment claim against an employer with at least 15 employees may be filed with the U.S. Equal Employment Opportunity Commission (EEOC). You may file a complaint with the Commission within 300 days of the date of alleged discrimination or harassment.
Remedies for Unlawful Harassment or Discrimination
Remedies available for unlawful harassment or discrimination under federal and California law may include:
Back pay (past lost earnings)
Front pay (future lost earnings)
Hiring/Reinstatement
Promotion
Out-of-pocket expenses
Policy changes
Training
Reasonable accommodation(s)
Damages for emotional distress
Punitive damages
Attorney’s fees and costs
Source: California Civil Rights Department, Sexual Harassment FAQs
California Sexual Harassment Fact Sheet
The information contained on this page is for informational purposes only.
It does not, and is not intended to, constitute legal advice.