Overview
California is known as being a leader in pro-employee labor and employment laws.
Although the body of federal laws and regulations governing the workplace applies to all states, employers with employees in California are also subject to a variety of broader and, in some cases, additional compliance requirements than employers doing business in other states.
The fundamental legal concept of workplace harassment under federal law is the basis for dealing with and preventing unlawful harassment, but in the state of California, the state's constitution, statutory scheme and common law rulings create a broader set of rules, restrictions and obligations than those imposed by federal law. For this reason, human resource professionals should have a basic knowledge of what those differences are.
This toolkit is designed to highlight some of the differences between federal and California laws involved in investigating, remedying and preventing unlawful workplace harassment.
The toolkit will:
- Summarize the laws surrounding the concept of unlawful workplace harassment and its prevention in the state of California.
- Explore the business case for understanding and complying with California laws and regulations, as well as the role of HR professionals in successfully investigating and remedying unlawful workplace harassment in California.
- Discuss development of harassment prevention policy and procedures specific to California state law.
Background
Harassing behavior can occur by and between co-workers, by supervisors and managers against subordinates, and by nonemployees against employees. An employer found liable for any form of unlawful harassment in the state of California can face substantial penalties, including back pay, front pay, and compensatory and punitive damages. Employers may also be liable for harassment victims' attorney fees, legal costs and other damages.
Similar to federal law, the California Fair Employment and Housing Act (FEHA) defines sexual harassment as harassment based on sex or of a sexual nature, gender harassment and harassment based on pregnancy, childbirth or related medical conditions. See California Government Code §12940(j)(4)(C).
The definition of sexual harassment includes many forms of offensive behavior, including harassment of a person of the same gender as the harasser.
Although virtually all employers are cognizant that workplace sexual harassment is illegal under both federal and California state law, what some organizations fail to recognize is that the concept of illegal harassment also extends itself to several other classes of persons protected by law—such as race, sex, pregnancy, childbirth, medical conditions related to pregnancy and childbirth, age (40 and over), ancestry, color, religion, religious creed, denial of Family and Medical Care Leave Act leave, disability, marital status, medical condition (cancer and genetic characteristics), genetic information, national origin, gender, gender identity, gender expression, sexual orientation, or any other characteristic protected by state, federal or local law.
Business Case
When dealing with prohibited unlawful workplace harassment in the state of California, the stakes can be incredibly high. In California, employers must approach workplace harassment prevention with extreme caution to reduce the risk of lawsuits, agency charges and penalties, and other fallout. See Activision Blizzard to Pay $18 Million to Resolve EEOC Sexual Harassment Suit.
Depending on the circumstances, employees who have been harassed may take legal action against the employer, managers involved in the decision or the harassed employee's co-workers.
Unlike those in other states, California employers have no ability to enforce a pretrial waiver of the right to a jury trial. Should a lawsuit proceed to a trial, a jury represents an uncertain and potentially dangerous proposition for most employers.
In addition to legal risks, organizations have many reasons for remedying and preventing unlawful workplace harassment. Pervasive workplace harassment may have far-reaching effects on the organization's ability to retain good employees, not to mention the negative impact on employee morale and productivity.
By following best practices in remedying and preventing unlawful workplace harassment, employers may limit their exposure for potential lawsuits, agency charges and penalties, and individual liability.
In response to the multiplicity of anti-discrimination laws, regulations and court decisions spelling out the nuances of what constitutes unlawful harassment and refining the scope of employer liability, employers must be very clear about not condoning unlawful workplace harassment, while at the same time ensuring that legitimate business interests are not subordinated to unreasonable expectations by a few employees who are unaware of what the law actually provides.
HR's Role
HR professionals are on the front line of preventing unlawful workplace harassment. They must be on alert to stop harassment when they see it firsthand or hear about it secondhand. They must promulgate anti-harassment policies and communicate them to employees. They must educate supervisors and management to likewise spot and stop unlawful workplace harassment.
Though there is overlap between California and federal laws, employers in California must have a solid understanding of the areas in which California law is broader than federal law or imposes additional obligations. Because myriad laws and regulations governing the prevention of unlawful workplace harassment in California are generally broader or in addition to federal law, the HR professional's role in investigating, remedying and preventing unlawful workplace harassment in the state of California is especially significant.
At the same time, HR professionals must recognize that not every employee complaint about being harassed by a supervisor or subjected to a hostile working environment will rise to the level of illegal workplace harassment. Even so, HR professionals must recognize that all employee complaints of any sort must be taken seriously for purposes of investigation and changes in organizational policy in a multitude of ways.
California versus Federal Law
Both federal and state fair employment practice laws prohibit a variety of harassing workplace behavior. Many of the same guidelines are often used for identifying the basic characteristics typically defining unlawful workplace harassment, but California's state and local fair employment practices laws tend to have a broader scope than federal laws. State law will usually supersede federal law when it provides greater protection to employees. See What are the California rules regarding workplace harassment, and how do they differ from federal law?
Comparison to federal law
Although the basic principles regarding harassment under the FEHA are generally similar to federal law, California's FEHA anti-harassment provisions apply more broadly.
California law is much more specific. The FEHA clearly defines unlawful harassment, the elements of a required unlawful harassment prevention policy, the specific requirements of mandatory sexual harassment training, the steps employers should take to prevent and remedy harassment, the ways to investigate a complaint of harassment, and the kinds of legal liabilities that may result when an organization fails to take reasonable steps to prevent or to remedy workplace harassment.
Broader coverage
The FEHA's anti-harassment provisions apply more broadly than other parts of the FEHA:
- Employers with one or more employees must abide by FEHA's harassment laws relating to pregnancy, perceived pregnancy, childbirth, breastfeeding and any related medical condition (Government Code §12926, §12940 and §11036).
- For all other types of harassment, FEHA prohibition applies to employers with five or more employees. When determining a covered employer, employees with worksites outside California also are counted, though they are not covered under the law (§11008(d)).
- The FEHA rules against harassment protects employees, unpaid interns, volunteers and independent contractors (§11019 (b)).
- Any employee who engages in unlawful harassment of a co-worker can be held personally liable for the harassment (§11019 (b)).
Protected individuals
Everyone is protected from illegal harassment in workplaces subject to applicable anti-discrimination laws. Similarly, everyone has the responsibility to refrain from engaging in unlawful harassment. The provisions of California's FEHA expect employers to protect their employees not only from each other, but also from harassment by customers and workplace visitors, and to address harassment committed by employees against nonemployees.
Sexual desire is not a required component of sexual harassment. Men can illegally harass other men, and women can unlawfully harass other women.
An employee does not have to be the intended target of harassment to show that the conduct subjected him or her to an unlawful hostile working environment.
Express statutory prohibition
From a federal law perspective, the U.S. Supreme Court first recognized an employer's liability for sexual harassment as a form of unlawful sex discrimination under Title VII of the Civil Rights Act of 1964 in the 1986 case of Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57. Since then, federal courts have recognized harassing behavior based on a variety of protected categories, including race, religion, national origin, age, disability and military or veteran status as discriminatory and unlawful.
Similar to federal Equal Employment Opportunity (EEO) laws, the FEHA also protects employees from discrimination, retaliation and harassment in employment. However, most of the employment provisions of the FEHA apply to employers with five or more full- or part-time employees, which expands the number of covered employers beyond those covered by federal law. As previously noted, certain anti-harassment provisions under the FEHA apply to employers with one or more employees.
Specific prohibitions and requirements
California's FEHA expressly:
- Prohibits harassment of employees, applicants and independent contractors by any persons and requires employers to take all reasonable steps to prevent harassment. This includes a prohibition against sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, breastfeeding and related medical conditions, as well as harassment based on all other characteristics listed above and under the law.
- Prohibits employers from limiting or prohibiting the use of any language in any workplace unless justified by business necessity. The employer must notify employees of the language restriction and consequences for violation.
- Requires that all employers provide information to each of their employees on the nature, illegality and legal remedies that apply to sexual harassment. Employers may either develop their own publications, which must meet standards set forth in California Government Code §12950, or use a brochure from the California Civil Rights Department (CRD).
- Requires employers with five or more employees to provide training to its supervisory and nonsupervisory employees on sexual harassment and abusive conduct prevention. Every two years, nonsupervisory employees must receive at least one hour of training and supervisory employees must receive at least two hours of training.
Employer obligations
All California employers must take the following actions against harassment:
- Take all reasonable steps to prevent discrimination and harassment from occurring. If harassment does occur, take effective action to stop any further harassment and to correct any effects of the harassment.
- Develop and implement an unlawful discrimination and harassment prevention policy with a procedure for employees to make complaints and for the employer to investigate complaints.
- Fully inform all personnel of their rights and any obligations to secure those rights.
- Establish procedures for the organization to fully and effectively investigate. The investigation must be thorough, objective and complete. Anyone with information regarding the matter should be interviewed. A determination must be made and the results communicated to the complainant, to the alleged harasser and, as appropriate, to all others who are directly concerned.
- Take prompt and effective corrective action if the harassment allegations are proven. The employer must take appropriate action to stop the harassment and ensure it will not continue. The employer must also communicate to the complainant that action has been taken to stop the harassment from recurring. Finally, appropriate steps must be taken to remedy the complainant's damages, if any.
- Post the CRD's discrimination and harassment poster in the workplace.
- Distribute the CRD's sexual harassment fact sheet to all employees or an equivalent information sheet that meets the standard set forth under the FEHA.
Sexual harassment
The FEHA generally follows federal EEO guidelines for defining sexual harassment. California's FEHA currently provides that harassment because of sex includes sexual harassment, gender harassment and harassment based on pregnancy, childbirth or related medical conditions. However, it does not address whether sexually harassing conduct must be motivated by sexual desire. In Kelley v. Conco Companies, 196 Cal. App. 4th 191 (2011), the California Court of Appeal held that a plaintiff in a same-sex harassment case must prove that the harasser harbored a sexual desire for the plaintiff to survive summary judgment. This decision contradicted an earlier court ruling in Singleton v. United States Gypsum Co., 140 Cal. App. 4th 1547 (2006), which held that no sexual desire is necessary to prove sexual harassment. SB 292 legislatively overturns Kelley, and provides that sexually harassing conduct need not be motivated by sexual desire.
Under both federal and California state law, harassment based on sex or of a sexual nature, gender harassment and harassment based on pregnancy, childbirth or related medical conditions is strictly prohibited. The definition of sexual harassment includes many forms of offensive behavior, including harassment of a person of the same gender as the harasser. As noted above, California's prohibitions on sexual harassment are significantly broader and prohibit harassment based on a variety of other sexual factors. This includes gender identity, gender expression and sexual orientation.
Prevention
As with federal EEO law, the FEHA also contains express provisions requiring an employer to take reasonable steps to prevent harassment (including posting required employee notices) and to investigate complaints of harassment. See What are the requirements in California for professionals who investigate workplace misconduct?
No-dating policy
Despite concerns that certain sections of the California Labor Code may be read to limit an employer's ability to enforce a workplace policy against relationships between supervisors and employees, California courts have held that the public policy against workplace harassment outweighs any individual privacy rights in certain limited circumstances. Thus, an employer in California may have a policy against workplace relationships in which a supervisory relationship is involved between the two employees and may enforce such a policy with discipline up to and including termination for violators. The leading case is Barbee v. Household Automotive Finance Corp., 113 Cal.App.4th 525 (2003), in which the court found the employer was not liable for wrongful termination when it discharged the employee for violating a no-dating policy. Employers should remain aware that policies against relationships between co-workers that are too broad may be illegal. Employers should consult with legal counsel to develop policies that do not lead to inconsistent enforcement.
Penalties
California's state laws carry some of the same penalties for violations as those imposed under federal EEO laws. However, in many instances the state imposes greater penalties for violations and explicitly requires employers to maintain anti-harassment policies and complaint procedures and to conduct workplace anti-harassment training.
Liability
As is the case with federal law, employers in the state of California are generally liable for both employee and nonemployee harassment. This includes harassing behaviors or conduct by supervisors, employees, agents or clients, customers and vendors. In addition, as with federal law, harassers, including both supervisory and nonsupervisory personnel, may be held personally liable for harassing an employee or co-worker or for aiding and abetting harassment. See Avoiding Individual Liability for the HR Professional.
Harassment Prevention Policies and Procedures
Effective policy implementation is directly linked to harassment prevention training for managers and employees.
California state and local laws as well as court decisions have made anti-harassment policies, complaint procedures and workforce training a necessity for employers to successfully minimize and defend against liability arising from workplace harassment.
Revised FEHA regulations, effective April 1, 2016, require employers to "develop a harassment, discrimination, and retaliation prevention policy that:
(1) Is in writing;
(2) Lists all current protected categories covered under the Act;
(3) Indicates that the law prohibits coworkers and third parties, as well as supervisors and managers, with whom the employee comes into contact from engaging in conduct prohibited by the Act;
(4) Creates a complaint process to ensure that complaints receive:
- An employer's designation of confidentiality, to the extent possible;
- A timely response;
- Impartial and timely investigations by qualified personnel;
- Documentation and tracking for reasonable progress;
- Appropriate options for remedial actions and resolutions; and
- Timely closures.
(5) Provides a complaint mechanism that does not require an employee to complain directly to his or her immediate supervisor, including, but not limited to, the following:
- Direct communication, either orally or in writing, with a designated company representative, such as a human resources manager, EEO officer, or other supervisor; and/or
- A complaint hotline; and/or
- Access to an ombudsperson; and/or
- Identification of the Department and the U.S. Equal Employment Opportunity Commission (EEOC) as additional avenues for employees to lodge complaints.
(6) Instructs supervisors to report any complaints of misconduct to a designated company representative, such as a human resources manager, so the company can try to resolve the claim internally. Employers with five or more employees are required to include this as a topic in mandated sexual harassment prevention training, pursuant to section 11024 of these regulations.
(7) Indicates that when an employer receives allegations of misconduct, it will conduct a fair, timely, and thorough investigation that provides all parties appropriate due process and reaches reasonable conclusions based on the evidence collected.
(8) States that confidentiality will be kept by the employer to the extent possible, but not indicate that the investigation will be completely confidential.
(9) Indicates that if at the end of the investigation misconduct is found, appropriate remedial measures shall be taken.
(10) Makes clear that employees shall not be exposed to retaliation as a result of lodging a complaint or participating in any workplace investigation" (§11023(b)).
See California: Discrimination & Harassment Prevention & Complaint Procedures Policy.
A clear, effective and well-communicated anti-harassment policy is the foundation for an effective prevention and remediation program, as well as the basis for a successful defense of a charge of unlawful harassment.
Awareness
Effectively communicating the policy and complaint procedures is essential to ensure effectiveness and to minimize the risk of liability should harassment occur.
The employer should provide each employee with a copy of the policy and ask employees to acknowledge its receipt. A receipt is a record that the employee has received, read and understood the policy, its prohibitions, the complaint procedure, the consequences of violating the policy, and the employer's response to prevent and correct unlawful behavior.
The policy and complaint procedure may also be communicated by:
- Including it in all employee handbooks.
- Posting it on employee bulletin boards.
- Reinforcing it through harassment sensitivity and prevention training.
- Publishing it on the employer's intranet.
- Publishing it on memos or paycheck stuffers.
- Discussing it in management meetings and written guidelines for managers.
- Discussing it in workgroup or all-hands meetings.
- Consistently enforcing and observing all anti-harassment and discrimination policies and procedures.
Managers and supervisors should be trained to notify HR immediately when issues or complaints arise, or if they observe incidents that could relate to harassment or discrimination.
Complaint procedure
Complaint procedures that are accessible, confidential and able to prevent retaliation are essential components of an anti-harassment policy. An organization's complaint procedure should meet the following guidelines:
- Complaint processes must fit the individual workplace and can include open-door policies, grievance procedures with a centralized place for bringing complaints and special toll-free telephone lines, among others.
- The procedure must offer reasonable alternatives for lodging a complaint.
- All complaints must be taken seriously, and all managers, supervisors and other designated individuals should be trained to react appropriately and promptly to any complaints.
- Employees should be encouraged to report harassment before it becomes severe or pervasive, and all supervisors should be instructed to report complaints to appropriate officials.
- Given that employees may raise harassment issues verbally, employers may not require only written complaints.
Harassment complaint processes should be consistent with or a part of other conflict resolution procedures to avoid confusion and to facilitate effective response.
Investigation
Investigating complaints of harassment is a critical component of a prevention program and of particular concern because a flawed investigation can result in legal exposure. However, regulatory instructions are vague, and courts take a case-by-case approach to evaluating sufficiency.
Major points to consider in effective complaint investigation include:
- Timeliness, including promptly initiating the investigation after an incident is reported or observed and reasonable completion and reporting of the results to appropriate parties.
- Objectivity and credibility, which require an impartial investigation by a trained neutral party, the support of management and the belief of employees that all complaints are properly investigated and that appropriate corrective action will be taken when violations are found.
- Thoroughness, accuracy and documentation of the findings and corrective actions taken based on balanced conclusions consistent with information disclosed during the investigation.
- Confidentiality, to the extent permitted by the nature, extent and depth of the investigation, reinforced by the discrete actions of the investigator and the disclosure of related information on a need-to-know basis.
- Closure, including reporting findings to appropriate officials, correcting violations, and following up with both complaining employees and alleged harassers to ensure their understanding of future expectations and to reassure them there will be no recurrences or retaliatory actions.
Formal training
Under the provisions of the FEHA, employers with five or more employees are required to provide a minimum of two hours of mandatory sexual harassment training to supervisors within six months of a supervisor's date of hire or transfer and every two years after that. Businesses with five or more employees must provide sexual-harassment-prevention training to all workers by Jan. 1, 2021, and every two years thereafter. Currently no provision in federal EEO laws requires mandatory harassment training, but federal case law has essentially made anti-harassment training a necessity to reduce liability.
Training for managers and employees should include a complete review of applicable anti-harassment law, all requirements under California law, the organization's policies, the consequences of violations, and the procedures for complaints and investigations. Supervisors should receive extended training on investigation and reporting procedures.
To establish an effective defense to a harassment lawsuit, the employer should be able to show that all employees, managers ad supervisors were made aware of its anti-harassment policy.
For detailed discussions of harassment prevention training, see Complying with California Sexual Harassment Training Requirements.
Avoiding retaliation
Employee perceptions of the harassment prevention program have a direct effect on the success of the program. In addition to policy credibility, noted above, employees must feel confident they will not suffer retaliation for engaging in the process. Management must immediately correct a situation in which employees are reluctant to complain for fear of retaliation. See Preventing Unlawful Workplace Retaliation in California.
The most obvious examples of retaliation are tangible employment actions, such as termination, failure to promote or negative performance reviews, whereas less obvious are undesirable shift changes, reassignments or denial of overtime.
Anti-retaliation provisions may not prevent an employee from lodging a complaint to stop legitimate adverse action, although the effects of prolonged, unchecked harassment may adversely affect performance and call into question otherwise legitimate adverse action.
Technology
The proliferation of electronic communication by means of e-mail, texting and social media has greatly expanded the ways in which unlawful workplace harassment can occur. Fortunately, employers have the technological edge. Working with information technology professionals, HR professionals can routinely monitor organizational communications for transmission of pornography, obscenities and threats. The computer use of employees suspected or accused of harassment can be forensically analyzed, provided that electronic data have been archived. Whenever employment is severed, it is a good idea to run a forensic analysis of the employee's employer-supplied electronic devices as well as use of the company's server to determine whether any unlawful harassment activity may have occurred. This precaution not only helps prevent future harassment; it helps employers make informed decisions about issues such as severance pay and job references.
Additional Resources
Agencies and organizations
California Civil Rights Department
Equal Employment Opportunity Commission
Tools and Samples
California Discrimination and Harassment Prevention and Complaint Procedures Policy
California Harassment Reporting Form
Preventing Unlawful Workplace Discrimination in California
Preventing Unlawful Workplace Retaliation in California
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