Legal news and tips for employees, by Law Office of Eugene Lee

Sexual Harassment in California

sexual harassment in californiaIt’s hard to believe that sexual harassment still occurs in the modern workplace, but it does. Luckily, Federal and California state laws offer powerful protections against workplace sexual

Under the law, there are two main types of sexual harassment:

“Sleep with me if you want to keep your job”

Quid pro quo sexual harassment is the type of harassment people are most familiar with. “Quid pro quo” is Latin for “this for that”. This form of sexual harassment involves a supervisor conditioning employee benefits, such as promotions, benefits or continuation of employment itself, on the employee’s acceptance of the supervisor’s harassing conduct, e.g., sexual advances.

There is probably not a more blatant form of employer exploitation of his superior position over a subordinate and the law is correspondingly harsh toward this type of harassment. Under California law, the employer is strictly liable for the sexual harassment of the supervisor and has no special legal defenses available to it. A successful plaintiff can recover lost wages and compensation of other economic losses, emotional distress damages, interest and attorney fees, and in cases where the employer’s officers, directors or managing agents knew of the harassment, punitive damages intended to punish or deter the employer.

Hostile work environment sexual harassment

Hostile work environment sexual harassment (HWE) consists of harassing conduct that is so severe or pervasive that it creates a hostile work environment for employees. Supervisors, co-workers, even subordinates can engage in conduct that gives rise to HWE. Harassing conduct includes slurs, taunts, intimidation, ridicule, groping, grabbing, etc.

Notice the requirement is not severe AND pervasive, but severe OR pervasive, meaning that a single instance of harassing conduct could create a hostile work environment if it is severe enough. Alternatively, a campaign of multiple acts of subtle harassment could collectively create a hostile work environment if it is pervasive enough.

The employee does not have to be the direct target of the harassing conduct in order to file a claim. For instance, a woman who witnesses her female co-workers being groped and propositioned can bring a claim for hostile work environment sexual harassment.

Recently, the California Supreme Court held that employer actions, such as termination, demotion, etc., could also constitute hostile work environment harassing conduct. See Roby v. McKesson HBOC (2009) 146 Cal.App.4th 63.

Harassment by supervisors and co-workers

If the harassment is by a supervisor, under California law, the employer will be on the hook under strict liability. If the harassment is by a co-worker, however, the employer will only be on the hook if a supervisor knew or should have known of the harassment and failed to take immediate and appropriate corrective action.

Federal law diverges from California law here in an unwelcome direction. Under Title VII of the Civil Rights Act of 1964, when a supervisor engages in hostile work environment harassment that does not involve tangible employer actions (e.g., termination, demotion), the employer can escape liability for HWE if the employer can show 1) employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior and 2) the employee unreasonably failed to take advantage of the preventive or corrective opportunities provided by the employer, or to avoid harm otherwise. See Burlington Industries, Inc. v. Ellerth (1998) 524 US 742, 764–765; Faragher v. City of Boca Raton (1998) 524 US 775, 806. This is unfortunate in that many victims of sexual harassment do not immediately report it to their employers for fear of retaliation. Under federal law, these employees may be out of luck. This is one of the reasons why filing a sexual harassment claim under California rather than Federal law is usually the better course.


Sexual harassment law offer strong protections in California and victims should not be afraid to fight back. As always, it is best to talk to a lawyer as soon as possible. This is particularly true given that strict filing deadlines apply (180 days to file a charge with the Equal Employment Opportunity Commission and 1 year to file a charge with the California Department of Fair Employment and Housing). Many lawyers offer free and confidential consultations, so don’t wait.

  • Loretta y

    I have a meeting on mondatly regarding this also they made me go home that night

  • Loretta y

    Another employee put hands on me and i have lost days of work


    Have a temporary restraining order against another employee for harassment. Both of us work for company and I brought the emails and texts to the attention of the human resource dept. However, human resource has stated that due to the harassment happening after business hours they wash there hands of this behavior and it is not work related ! So since both are employees how is this even legal ???? Do I not have any employee rights ?

    • Barbara Elaine Leon

      You sure do, go over their heads and get to corporate. Alot of time I find that the bad behavior stops at the doors of the supervisors.So, go over their heads and keep pushing this.I had a situation where I was dating a coworker, in which neither of us left in bad resolve. But, he was terminated over something else trivial.Which to this day, I still feel it was my head boss that felt a streak of jealousy in the relations. Being he use to call me into his office and jokingly ask so “whats the deal between you and so and so.” In which , I told him about his escapades on company time to the local wattering hole for beer and makeout sessions with his wife now prior to working. And my private life is no ones business .So, I battled black mail with black mail right back. But you really need to follow up on that.

  • Joey Constanza

    One of my friends works for a big name company here in Chicago. They have told me about a few times where they saw some co-workers sexually harassing another co-worker. I have always known not to dwell into other people’s business, but for this case should my friend intervene? I don’t want them to get in trouble for anything. Perhaps I should tell my friend to tell the co-worker about getting a sexual harassment lawyer.

  • Sam Payn

    A very informative post there. I would like to add that employers
    conducting business in California working with 50 or more workers are
    supposed to conduct sexual harassment training for its employees. This
    2-hour-training should be imparted every two years to all supervisory
    employees (both old and new)

    • Kelly Marine Ball

      Hi Sam. What if a Manager was FIRED for sexual harassment ONE HOUR AFTER THEY COMPLETED THE 2 HOUR TRAINING COURSE? We have a wrongful termination situation on our hands. In addition, what are the consequences If other Managers have not taken the course in time as required by HR? Any feed back would be appreciated. Thank you!

  • curious and depressed

    Here’s a question. Had a supervisor tell me to cooperate or my hours will be reduced. Cooperate means carry on in conversations and pictures via text. I have all the text messages showing my distress before harassment started and then the continuing harassment from then on as well as several witness willing to talk about hearing and seeing the harassment. What do I do?

  • Mark Melgie

    @ dan – why would you want to put a picture of your wife in bikini in public? 

    Nope, however if there is a lewd acts against an employee by a person with moral authority against him/her and also it depends on the grab of the image.

  • uk immigration solicitors

    Before we start talking about how to deal with sexual harassment I think it’s important to define exactly what sexual harassment.

  • Dan

    Is it still sexual harrassment to have a picture of your wife on your desk wearing a skimpy bathing suit?

  • Wayne Morrise

    Thinking about having an attorney to protect you against this kind of situation is the greatest thing you can do to make yourself secured from harm.

  • Janet

    IF someone excuses me of sexual harrasment don’t they need to tell me who it was so I can protect myself or at least try to recall an incident if there was one

  • Indiana DUI

    Very interesting, we have similar laws in Indiana, however a few things are definitely different from CA law.

  • Advogado Rio de Janeiro

    we are getting there too, here is difficult to prove sexual harassment in the courts,nobody wants to be a witness!

    • Dublj

      Document EVERYTHING. I mean anything said, anything insinuated as having conditions, any unwanted touching, any discussions you have had with the person doing the alleged sexual harassment, any with their superiors. The best way to win a case of any kind is with a clear and accurate paper trail of what was done and what steps were taken to put an end to the unwanted actions. A witness is always better, but, too often they are fearful for their own jobs and/or retaliation. So, always write everything down as soon as possible and as accurately as possible. Be sure not to do it on company time, but do it, nonetheless.