This page details California’s workplace harassment laws. The goal of this page is to help the non-lawyer determine if they are being unlawfully harassed. There is a difference between lawful behavior and a hostile work environment. After reviewing this page and the harassment definition, if you believe you were terminated for complaining about harassment, contact an employment lawyer for a free consultation.
This page covers the following subjects:
- Harassment definition and basics
- Protected characteristics
- Hostile work environment
- Companies have a legal duty to prevent a hostile working environment
- The harasser is also liable, not just the employer
- What can you recover in a lawsuit?
- What is the statute of limitations?
- Average verdicts and settlements in harassment cases
- How much does a lawyer cost?
- When to consult with a lawyer
This hostile work environment video was made by an lawyer Mr. Odell went to law school with. It gives a great overview of California’s harassment law.
Harassment Definition & Basics
The law states that it is unlawful to harass someone at work because of their race, religion, sex, disability, age, or sexual orientation. California Government Code § 12940(j). The definition of “sex” includes harassment based on sexual desire, pregnancy, childbirth, or related medical conditions. Sexual harassment is by far the most common form of hostile work environment in California. If you want to learn more about sexual harassment, visit our sexual harassment page.
Harassment at work only becomes unlawful when the perpetrator is harassing the victim because of a protected characteristic. What this means is that your boss only breaks the law if he or she is harassing you because of your race, religion, sex, disability, sexual orientation, or one of the many more categories. Your boss or co-worker is probably not violating the law if he or she is simply being mean to you because of your job performance, personality, or some other non-protected characteristic.
Regulations clarify the harassment definition:
- verbal, e.g., epithets, derogatory comments or slurs (or repeated romantic overtures, sexual comments and jokes or prying into one’s personal affairs)
- physical, e.g., unwanted touching, rubbing against someone, assault and physical interference with movement or work; or
- visual, such as derogatory cartoons, videos, pictures, drawings or posters, lewd gestures or leering; or
- Sexual favors, e.g., unwanted sexual advances, which condition an employment benefit upon an exchange of sexual favors.
Protected Harassment Categories
There is so much more to this body of law than just sexual harassment. CA Government Code § 12940(j) identifies all the protected categories “race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status.” Remember, harassment because of “sex” includes sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions.
Hostile Work Environment
Employment lawyers get calls from clients every day saying that they working in a “hostile work environment.” But is that true? Legally speaking, what exactly is a hostile work environment? To win a case for hostile work environment the employee must prove that:
- She or he was subjected to unwelcome sexual advances, conduct, or comments;
- the harassment complained of was based on sex; and
- the harassment was “so severe or pervasive” it altered the conditions of her employment and created an “abusive working environment.”
If the harasser is a supervisor or managerial level employee, the employer is automatically liable for their conduct. But to render the employer liable for coworker hostile environment harassment, the employee must prove the employer knew or should have known of the harassment and failed to take prompt action to stop it.
Companies Have a Legal Duty to Prevent Harassment
Harassment law also requires employers to take all reasonable steps necessary to prevent discrimination and harassment from occurring. The employer’s duty to prevent harassment is affirmative and mandatory. Prompt investigation of a harassment claim is a necessary step by which an employer meets its obligation to ensure a discrimination-free work environment.
Generally, this means that if you have complained about harassment, and your company has ignored you, and the harassment continues, the corporation may not just be smacked with a verdict for harassment, but also for failing to prevent harassment. This can be very powerful in a punitive damage case.
The Harasser is also Personally Liable, Not Just the Corporate Employer
Harassment is such an insidious form of wrong, that the California legislature has added an additional layer of liability that is not found in a discrimination case. An employee (supervisor or coworker) who harasses another employee may be held personally liable under California law regardless of whether or not the company is held liable. “An employee . . . is personally liable for any harassment prohibited by this section that is perpetrated by the employee, regardless of whether the employer . . . knows or should have known of the conduct and fails to take immediate and appropriate corrective action.”
What Can You Recover in a Harassment Lawsuit?
First, you may recover emotional distress damages, also known as “pain and suffering” caused by the discrimination. Generally, emotional distress damages include compensation for anxiety, depression, and mental suffering. For example, in a sexual harassment case, the employee may recover for symptoms such as weight loss, sleeplessness, loss of sexual desire, diarrhea, crying spells, and depression. The law tries to compensate victims for past emotional distress as well as future emotional distress. This is up to the jury.
Second, if you can show truly reprehensible conduct, and prove it on a higher burden of proof, you may win punitive damages. These damages are meant to punish the corporation. These damages are extremely rare. In order to win these damages, you must show that your company acted with malice, oppression, or fraud. This is extremely difficult to do.
Third, if you win your hostile work environment lawsuit at trial, you may recover your attorney’s fees on top of your emotional distress damages. Since many hostile work environment claims have small emotional distress damages, California’s legislature wanted to incentivize employment lawyers to provide a check on workplace harassment.
Finally, if you were fired as a result of complaining about harassment, you may win economic damages. This means you would recover the wages you would have earned had you not been fired for reporting harassment. For example, if you were earning $80,000 per year but then got fired in retaliation for your harassment complaint, you can recover what you would have earned had you not been fired illegally.
What is the Statute of Limitations?
You have one year from the last bad act to acquire a right to sue letter from the Department of Fair Employment & Housing. You have one year from the date you acquired the letter to file your case in state court, federal court, or arbitration (if you’ve agreed to it). In most cases, you would want your attorney to acquire this right-to-sue letter for you. But if you are out of time or cannot find a lawyer to take your case, you can acquire the right to sue letter from the DFEH.
Take note! The statute of limitations is different for employees of public entities. Sometimes, the statute of limitations can be as short as six months! Since the statute of limitations in hostile work environment cases varies widely, it is recommended that you consult with an employment lawyer promptly after the harassing event occurs.
The Average Verdicts and Settlements in Hostile Work Environment Cases
There is not a lot of reliable data published on this subject. By their very nature, settlement agreements are mostly confidential. Jury verdicts on the other hand are published routinely, but due to jurisdictional differences, jury pool demographics, and legal standards being different, the data should be eyed very suspiciously.
According to a Berkeley publication on verdict values, of seventy-eight cases studied, victims of sexual harassment won 67% of the time with a median verdict of $210,000. But, anecdotally, it is fair to say that the vast majority of cases settle for under $50,000. But if you have a case you should not expect a certain amount from your lawsuit. Every case is wildly different and settlement value varies tremendously depending on thousands of significant variables.
How Much Do Harassment Lawyers Cost?
The wonderful thing about most employment attorneys in California is that they get paid only if they recovery money for you. They get paid a percentage of the total recovery. This is called a contingency fee. It’s a wonderful fee structure because most people who just got fired from their job don’t have $400/hr to spend on a lawyer. Not only that, but the lawyers generally front the expenses of the case on your behalf. That means you don’t have to spend any money out of pocket. This money is recovered from the settlement at the end of the case.
Consulting with a Attorney
Most labor lawyers offer employees free consultations. That way you don’t have to worry about paying for the lawyers’ time. It is highly recommended that you contact a lawyer for a consultation as soon as possible after your termination. Waiting can have detrimental effects on your case. This office gives everyone a free consultation. There is no obligation and you don’t sign anything to speak with our staff. This is our way of investigating whether your claim is worth pursuing.
 CA Government Code § 12940(j)(4)(c)
 CA Government Code § 12940(k)
 CA Government Code § 12940(j)(3)