Sexual Harassment Law Defense Lawyer DFEH FEHA
This law firm represents companies, employers, and businesses; not employees.
Definition. Under the Fair Employment and Housing Act (“FEHA”), sexual harassment is defined as verbal, physical or sexual behavior directed at an individual because of his or her gender. (Gov. Code, §12900, et seq.; Peralta Community College Dist. v. Fair Employment & Housing Comm’n (1990) 52 Cal. 3d 40, 45 n. 2.)
Sexual harassment consists of any unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature. Hostile work environment is the second category. (Rieger v. Arnold (2002) 104 Cal.App.4th 541.) Sexual harassment is a form of sex discrimination under Article I, §8, of the California Constitution. (Rojo v. Kliger (1990) 52 Cal. 3d 65, 73.)
Sexual harassment includes, but is not limited to, verbal conduct (i.e., epithets, derogatory comments or slurs), as well as physical and visual insults. Sexual harassment also includes (but is not limited to) physical contact, e.g., assault, impeding or blocking movement, or any physical interference with normal work or movement, visual objects such as posters, cartoons, or drawings, sexual favors, and unwanted sexual advances. (Cal. Code Regs. tit. 2, §§1287.6, subd. (b)(1), 7291.1, subd. (f).)
FEHA Laws Protecting Against Sexual Harassment
The federal counterpart to FEHA, Title VII of the Civil Rights Act of 1964 (42 U.S.C. §2000e, et seq.), also protects against employment based sexual harassment.
Because FEHA and Title VII of the Federal Civil Rights Act of 1964 have the same anti-discrimination objectives and public policy purposes, California courts may rely on federal decisions to interpret analogous parts of the state statute. (Wade v. Ports America Management Corp. (2013) 218 Cal.App.4th 648, 652.)
FEHA protects persons of both sexes from sexual harassment in employment. (Gov. Code, § 12940, subd. (a); Commodore Home Sys., Inc. v. Superior Court (1982) 2 Cal. 3d 211, 229; see also Steiner v. Showboat Operating Co. (9th Cir. 1994) 5 F.3d 1459, 1464; Mogilefsky v. Superior Court (1993) 20 Cal. App. 4th 1409, 1414.)
Under FEHA, sexual harassment includes gender harassment and harassment based on pregnancy, childbirth, or related medical conditions. (Gov. Code, §12940, subd. h)(3)[c].) The employee must show that gender is a substantial factor in the harassing conduct. (Accardi v. Superior Court (1993) 17 Cal. App. 4th 341, 348.)
Element 1: Covered Employer
An employer includes any person or entity regularly employing five or more persons. (Mathews v. Happy Valley Conference Center, Inc. (2019) 43 Cal.App.5th 236, 260, quoting Gov. Code, § 12926, subd. (d).)
Covered: Agents of Covered Employers
An agent is a person who represents another person or an entity in dealing with third persons. Under California law, agents of covered employers are also considered employers. (Gov. Code, § 12926, subd. (d).)
To determine whether someone is an agent of an employer, courts look at the amount of control the employer exercises over them. (Patterson v. Domino’s Pizza, LLC (2014) 60 Cal.4th 474, 492.)
Covered: State, Cities, and Political or Civil Divisions
The state, cities, and any political or civil division of the state are covered employers. (Gov. Code, § 12926, subd. (d).)
Covered: Labor Organizations
A labor organization, like an employer, cannot discriminate on the basis of an individual’s religious creed.(Gov. Code, § 12940, subd. (a).)
A “labor organization” includes any organization that exists and is constituted for the purpose, in whole or in part, of collective bargaining or of dealing with employers concerning grievances, or terms or conditions of employment. (Gov. Code, § 12926, subd. (g).)
Covered: Individual Employees (Coworkers/Supervisors)
An employee of an entity subject to the FEHA is personally liable for any harassment prohibited that is perpetrated by the employee, regardless of whether the employer or covered entity knows or should have known of the conduct and fails to take immediate and appropriate corrective action. (Gov. Code §, 12940, subd. (j)(3).) Supervisors are personally liable for their sexual harassment of employees. (Matthews v. Superior Court (1995) 34 Cal. App. 4th 598, 606; Page v. Superior Court (1995) 31 Cal. App. 4th 1206, 1213.)
Note: This individual liability was only recently codified by the California Legislature after the California Supreme Court held in Reno v. Baird that individual employees are not liable under FEHA. Today, individual employees can be held liable.
A non-harassing supervisor, who fails to take action to prevent sexual harassment, is not personally liable for sexual harassment as either an aider or abettor of the harasser or the employer, or as the employer’s agent. (Fiol v. Doellstedt (1996) 50 Cal. App. 4th 1318.)
An employer is required to take all reasonable steps to prevent harassment from occurring and to prohibit retaliation for opposing harassment. (Gov. Code §12940, subds. (f), (h), (i) and (j).) An employer’s duty to prevent harassment and discrimination is affirmative and mandatory. Prompt investigation of a discrimination or harassment claim is a necessary step by which an employer meets its obligation to ensure a discrimination-free work environment. (Northrop Grumman v. W.C.A.B. (2002) 103 Cal.App.4th 1021.)
An employer is automatically liable for sexual harassment under a hostile work environment theory when the claim is against a supervisor, subject to certain affirmative defenses regarding the reasonableness of conduct by the employer and the victim. (Faragher v. City of Boca Raton (1998) 524 U.S. 775.) An employer may be liable for a sexual harassment claim when the claim is against a supervisor, even when the victim suffered no tangible job detriment. (Burlington Indus., v. Ellerth (1998) 524 U.S. 742.)
Not Covered: Nonprofit Religious Associations and Corporations
Nonprofit religious associations and corporations are not covered employers. (Gov. Code, § 12926, subd. (d)(1).)
Element 2: Protected Employee
Protected: Employees
An employee is someone who is both a person who works under the direction and control of the employer, and a person whom the employer has agreed to hire. (Gov. Code, § 12926, subd. (c).) However, the “FEHA does not define an employer, employee, or what constitutes employment.” (Shephard v. Loyola Marymount Univ. (2002) 102. Cal.App.4th 837, 842.)
Protected: Men and Women
Both men and women are protected from sexual harassment. (Matthews v. Superior Court (1995) 34 Cal. App. 4th 598; Mogilefsky v. Superior Court (1993) 20 Cal. App. 4th 1409); see also Oncale v. Sundowner Offshore Services Inc. (1998) 523 U.S. 75.)
Protected: Temporary Workers
Temporary workers are considered employees. (Bradley v. California Dept. of Corrections & Rehabilitation (2008) 158 Cal.App.4th 1612.)
Protected: Job Applicants
California law expressly extends its anti-discrimination protections to applicants for employment positions. Sada v. Robert F. Kennedy Med. Ctr. (1997) 56 Cal.App.4th 138, 144.)
Protected: Unpaid Interns
Unpaid interns represent one of the few positions in which a worker will have the right to be free from discrimination despite not being an employee. (Gov. Code, § 12940, subds. (c), (j), & (l).)
Not Protected: Volunteers
Volunteers are not protected under FEHA. (Mendoza v. Town of Ross (2005) Cal.App.4th 625.)
Not Protected: Family Members
Person employed by their parents, spouse, or child are not protected under FEHA. (Mendoza v. Town of Ross (2005) Cal.App.4th 625, 632 [noting that FEHA excludes persons employed by close relatives].)
Not Protected: Independent Contractors
Independent contractors are not protected under FEHA because they do not work under the direct control and supervision of the employer. (Gov. Code, § 12940, subd. (j)(5).)
Not Protected: Workers outside of California Working for California a California Company
The FEHA does not cover the sexual harassment claims of an employee of a California-based company who is not herself a resident of California, whose employment duties are performed, for the most part, outside of California, and whose injuries are based on behavior that occurred outside of California. (Campbell v. Arco Marine, Inc. (1996) 42 Cal. App. 4th 1850.)
Two Theories of Sexual Harassment under FEHA
Quid Pro Quo Sexual Harassment Elements
Under a “quid pro quo” theory, an employee must plead that either the employment itself, a term of the employment, or avoidance of negative consequences in the employment is conditioned upon submission to unwelcome sexual advances. Quid pro quo harassment involves sexual propositions, unwarranted graphic discussion of sexual acts, and commentary on the employee’s body and the sexual uses to which it could be put. (See, e.g., Bihun v. AT&T Information Systems, Inc. (1993) 13 Cal. App. 4th 976, 988.)
If a term of employment is expressly or implied conditioned on acceptance of a supervisor’s unwelcome sexual advances, a cause of action lies for sexual harassment under the quid pro quo theory. (Mogilefsky v. Superior Court (1993) 20 Cal. App. 4th 1409, 1414 [implied promise of higher pay to come to supervisor’s hotel constituted sexual harassment].)
Elements of Quid Pro Quo Sexual Harassment
In order to establish a claim of sexual harassment under this theory, a plaintiff must prove:
- That the plaintiff was an employee of the defendant;
- That the defendant or employee of the defendant made unwanted sexual advances to plaintiff;
- That terms of employment, job benefits, or favorable working conditions were made contingent, by words or conduct, on the plaintiff’s acceptance of the defendant’s sexual advances or conduct;
- That at the time of defendant’s conduct, defendant was a supervisor or agent for defendant;
- That plaintiff was harmed; and
- That the defendant’s conduct was a substantial factor in causing plaintiff’s harm.
Hostile Work Environment Sexual Harassment Elements
A claim for sexual harassment on a “hostile work environment” theory need not allege any sexual advances whatsoever; the key is that an employer created a hostile environment for an employee because of that employee’s sex. (See Accardi v. Superior Court (1993) 17 Cal. App. 4th 341, 348 [claim for hostile work environment does not require explicit sexual harassment, nor must it have explicit sexual overtones].)
Pervasive Harassment
An employee may claim a hostile work environment where the harassment is sufficiently pervasive so as to alter the conditions of employment and create an abusive work environment. Sufficiently pervasive harassment requires a pattern of harassment of a routine or generalized nature. (Fisher v. San Pedro Peninsula Hosp. (1989) 214 Cal. App. 3d 590, 608-10.)
Employee Psychological Well Being
The alleged misconduct need not seriously affect the employee’s psychological well-being. (Kelly-Zurian v. Wohl Shoe Co. (1994) 22 Cal. App. 4th 397, 412 [“[s]o long as the environment reasonably would be perceived, and is perceived, as hostile or abusive, there is no need for it also to be psychologically injurious.”]; see also Harris v. Forklift Systems (1993) 510 U.S. 17, 21 [no evidence of psychological harm required to establish a hostile work environment].)
Harassment Nexus to Employment
Wherever the harassing conduct occurs, it must occur in a work-related context and have a sufficient nexus to the employment relationship. (Doe v. Capital Cities (1996) 50 Cal. App. 4th 1038, 1048; see also Capitol City Foods, Inc. v. Superior Court (1992) 5 Cal. App. 4th 1042, 1049 [supervisor who raped employee during off-duty date did not act in the course of his employment].)
Must Be Non-Consensual
A employee must show that the conduct was unwelcome. Weeks v. Baker & McKenzie (1998) 63 Cal. App. 4th 1128, 1146; Fisher v. San Pedro Peninsula Hosp. (1989) 214 Cal. App. 3d 590; see also Meritor Savings Bank FSB v. Vinson (1986) 477 U.S. 57, 68.) The victim’s prior consent to sexual relations with the harasser does not waive her right to decline later. (Donald Schriver, Inc. v. Fair Employment & Housing Comm’n (1986) 220 Cal. App. 3d 396.)
Examples of Sexual Harassment Placing a lewd question on an employee’s computer screen constituted sexual harassment. (Monge v. Superior Court (1986)176 Cal. App. 3d 503.)
A senior official of the employer sexually harassed an employee when he exposed himself to her, repeatedly touched her and asked her to touch him, asked her out socially, insisted she attend a “business” dinner with him, discussed his unsatisfactory sex life and his need for extramarital affairs, told her if she “played her cards right” she could have any job she wanted, and asked her to have an affair with him. (Bihun v. AT&T Information Systems, Inc. (1993) 13 Cal. App. 4th 976, 979-87.)
The employee’s complaint adequately alleged sexual harassment against a male supervisor who sexually harassed the male employee by making sexual comments and implying that the employee would receive increased pay for going to the supervisor’s hotel, and because there was evidence of a hostile environment toward males. (Mogilefsky v. Superior Court (1993) 20 Cal. App. 4th 1409.)
An employee adequately plead a claim for sexual harassment by alleging that the employee was the object of threats, rejection, mockery, the application of double standards, sexual advances, and intimidation for nine years. (Accardi v. Superior Court (1993) 17 Cal. App. 4th 341, 349.)
A supervisor sexually harassed an employee by telling her she could wear shorts, grabbing and holding her hand and pulling her toward him, frequently mentioning penile implants, asking her to tape X-rated movies for him, and asking her if she got aroused watching X-rated movies. (Casenas v. Fujisawa USA, Inc. (1997) 58 Cal. App. 4th 101, 106-07.)
A romantic relationship between a supervisor and an employee, other than the plaintiff, does not alone create a sexual harassment claim. (Proksel v. Gattis (1996) 41 Cal. App. 4th 1626.
Filing A Sexual Harassment Claim
Must Exhaust Administrative Remedies
Before filing a statutory sexual harassment claim, the employee must exhaust available administrative remedies by filing a charge of sexual harassment with the California Department of Fair Employment & Housing (“DFEH”). (Gov. Code, § 12960.)
Statute of Limitations
The employee must file a civil lawsuit within one year from the date that the DFEH issues a “right-to-sue” notice to the employee. (Gov. Code, §12965, subd. (b).)
Right to Sue After One Year of Filing With DFEH
An employee’s right to sue arises by operation of law when the Department of Fair Employment and Housing fails to resolve the matter within one year from the time the employee first filed an administrative complaint for discrimination. The employee’s failure to obtain a second right to sue letter does not preclude a finding that the employee exhausted all required administrative remedies. (Grant v. Comp USA, Inc. (2003) 109 Cal.App.4th 637.)
Remedies
Compensatory Damages
The plaintiff may recover damages if he or she demonstrates that the Defendant engaged in discriminatory practice or discriminatory practices with malice or with reckless indifference. (Stirlen v. Supercuts, Inc. (1997) 51 Cal.App.4th 1519.)
Punitive Damages
Where an action is pleaded under the Fair Employment and Housing Act for discrimination, the same opportunity to plead and recover punitive damages exists. (Monge v. Superior Court (1986) 176 Cal.App.3d 503.)
Emotional Distress Damages
(Kelly-Zurian v. Wohl Shoe Co. (1994) 22 Cal. App. 4th 397, 410 Bihun v. AT&T Information Systems, Inc. (1993) 13 Cal. App. 4th 976; see also Doyle v. Superior Court, (1996) 50 Cal. App. 4th 1878, 1887 [sexual harassment claim based on past emotional distress does not compel plaintiff to undergo Code of Civil Procedure §2032 mental exam].)
Injunctive Relief
Injunctive relief is an appropriate remedy where a business engages in unlawful discrimination since an employer that so discriminates may have an unfair advantage over one that complies with the FEHA. Injunctive relief can include reinstatement of the wrongfully terminated employee. (Herr v. Nestle U.S.A., Inc. (2003) 109 Cal.App.4th 779.)
Prejudgment Interest
Prejudgment interest accompanies a backpay award in order to make the employee whole. (Currie v. Workers’ Comp. Appeals Bd. (2001) 24 Cal.4th 1109.)
Attorneys’ Fees and Costs
The court, in its discretion, may award to the prevailing party, including the department, reasonable attorney’s fees and costs, including expert witness fees. (Gov. Code, § 12965, subd. (b).)
Lost Compensation
Back Pay
Back pay restores a plaintiff in an employment discrimination case to the position he or she would have occupied but for the discrimination. (Lozada v. City and County of San Francisco (2006) 145 Cal.App.4th 1139.)
Front Pay
Front pay as the term is used in employment litigation, is a measure of damages for loss of future income, as opposed to backpay, which is lost-wages damages through the time of trial. If the judge orders reinstatement of a fired employee, front pay might be awarded to make up a wage differential if there were no vacancy into which the employee could immediately be reinstated or promoted. (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359.)
Affirmative Defenses
Mandatory Arbitration Requirement
(Prudential Ins. Co. of America v. Lai (9th Cir. 1994) 42 F.3d 1299 [in agreeing to arbitrate Title VII claims, employee must knowingly waive Title VII rights and remedies]; see also Davis v. Continental Airlines, Inc. (1997) 59 Cal. App. 4th 205 [defendants’ right to arbitrate waived for failure to demand arbitration while pursuing discovery in civil action].)
Failure to Mitigate
(See generally Stanchfield v. Hamer Toyota, Inc. (1995) 37 Cal. App. 4th 1495 [explaining measure of mitigation]; Parker v. Twentieth Century-Fox Film Corp. (1970) 3 Cal. 3d 176 [although not exactly an affirmative defense, this doctrine can be used to reduce damages].)
Avoidable Consequences Doctrine
In a FEHA action against employer for hostile environment sexual harassment by a supervisor, an employer may rely on avoidable consequences defense to limit damages if employer can plead and prove: (1) employer took reasonable steps to prevent and correct workplace sexual harassment, (2) employee unreasonably failed to use preventive and corrective measures that employer provided, and (3) reasonable use of employer’s procedures would have prevented at least some of the harm that employee suffered. (State Department of Health Services v. Superior Court (McGinnis) (2003) 31 Cal.4th 1026, 1044.)
Reasonable Care Taken to Avoid Sexual Harassment
An employer may show, as an affirmative defense, that it exercised reasonable care to avoid sexual harassment and eliminate it when it might occur, and that the employee failed to show reasonable care by taking advantage of the employer’s safeguards and otherwise preventing harm that could have been avoided. (Faragher v. City of Boca Raton (1998) 524 U.S. 775.)
Proof of an anti-harassment policy is not necessary, but will satisfy the first element of this affirmative defense. Proof that an employee did not exercise reasonable care is not limited to failure to use the employee complaint process, but such a failure will satisfy the employer’s burden under the second element. (Ibid.) No such distinctions regarding “tangible employment actions” suffered by plaintiffs are found in the Fair Employment and Housing Act or its regulations, and no affirmative defenses of the kind identified in Faragher are available to employers under FEHA. In fact, the regulations state that in the case of co-workers, failure to notify is not an affirmative defense. An employee’s failure to notify the employer of harassment by a co-worker is not an affirmative defense. (2 Cal. Code, §1287.6, subd. (b)(4).)