What are the California rules regarding workplace harassment, and how do they differ from federal law?

Basic  principles regarding harassment under the Fair Employment and Housing Act (FEHA) generally apply in the same way as under federal law, including the definitions (i.e., quid pro quo and hostile environment), the elements of an appropriate anti-harassment policy, 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 can result when an organization fails to take reasonable steps to prevent or remedy workplace harassment.

The FEHA's anti-harassment provisions apply more broadly than other parts of the act. First, the harassment prohibition applies to all employers with one or more employees. Second, although the FEHA's other provisions generally do not apply to independent contractors, the act's rule against harassment protects independent contractors. Third, although individual supervisors generally cannot be held personally liable for discrimination or retaliation under the FEHA, supervisors can be held personally liable for unlawful harassment. Finally, the FEHA requires employers to maintain a written policy describing the particular aspects of the act's anti-harassment provisions.

The FEHA's anti-harassment provisions also differ from federal law in several other important ways. For example, the FEHA does not recognize the well-known affirmative defenses that exist under federal law for employers that can demonstrate they took reasonable proactive steps to prevent harassment and were not aware that a particular employee was being harassed because the employee failed to take advantage of the employer's reporting and investigation processes and procedures. California law will instead limit the damages that an employee can recover in litigation by eliminating those damages that might have been avoided if the employee had reported the harassment when it was occurring. (This is called the avoidable consequences doctrine.) This difference can be very important: A case that might have been disposed of summarily by a judge in federal court may still go to a jury trial in California. In addition, because the protected categories under the FEHA are more expansive than under federal law, the scope of the kinds of workplace conduct that may constitute unlawful harassment based on a protected category is also much broader.

The FEHA contains express provisions requiring an employer to take reasonable steps to prevent harassment (including required employee notices) and to investigate complaints of harassment. Organizations that fail to adopt and meaningfully communicate anti-harassment policies, that fail to train supervisors and employees as required by law, that fail to investigate complaints of harassment properly, or that fail to respond appropriately to harassment (i.e., with appropriate discipline up to and including discharge) can be punished by California juries with multimillion-dollar awards.

Organizations in California must generate and retain records documenting the reasonable steps the organization takes to prevent and remedy workplace harassment. Formal record-keeping requirements may apply to some of the records for employers covered by sexual harassment training requirements. All organizations in California should consider retaining more documentation than the required minimums and should retain such documents indefinitely, due to the benefits of being able, in litigation, to demonstrate a long history of taking reasonable steps to prevent harassment. On a related point, the Department of Fair Employment and Housing (DFEH), when it investigates any harassment charge, will now almost always require an employer to produce documentation showing the sexual harassment training provided by the employer to its supervisors and employees, particularly if the organization is subject to mandatory training requirements.

Employers in California may also be liable for failure to prevent harassment or discrimination. The California Fair Employment and Housing Commission (FEHC) issued a 2010 decision (Department of Fair Employment and Housing v. Lyddan Law Group, LLP) that held that an employer can be liable for failing to take all reasonable steps to prevent discrimination and harassment, even if there is no underlying discrimination or harassment. The employer in this case did not have an employee handbook or an anti-harassment policy and did not conduct any employee training or supervisor training.