What Is Considered Workplace Harassment Under California Law?

Most of us know what it feels like to have a difficult day at work. Maybe a supervisor is rude. A coworker makes an inappropriate comment. Someone plays favorites. Or you work with a manager who is simply difficult to deal with.

But when does bad workplace behavior cross the line into illegal harassment?

That distinction matters.

Under California law, not every unpleasant, unfair, or even offensive workplace interaction is necessarily unlawful harassment. For harassment to be unlawful, it must involve conduct connected to a legally protected characteristic, such as race, sex, age, and others specifically listed in the relevant statute.

Understanding the difference can help employees recognize when workplace behavior may be more than just inappropriate and when it may violate the law.

What Makes Workplace Harassment Unlawful Under California Law?

California’s Fair Employment and Housing Act (FEHA) prohibits workplace harassment based on protected characteristics.

California’s Civil Rights Department (CRD), which is the government agency that enforces FEHA, explains that FEHA prohibits harassment of employees, applicants, unpaid interns, volunteers, and contractors based on a protected category. Unlike FEHA’s employment discrimination provisions, California’s prohibition against workplace harassment applies even in workplaces with fewer than five employees. [1]

Protected characteristics under California law include, among others:

• Race
• Color
• Ancestry
• National origin
• Religion
• Age (40 and older)
• Disability
• Medical condition
• Sex (including pregnancy)
• Gender
• Gender identity
• Gender expression
• Sexual orientation
• Marital status
• Genetic information
• Military or veteran status

Harassment may also involve conduct based on more than one protected characteristic.

The important point is this: being treated badly at work and being subjected to unlawful harassment are not always the same thing.

The question is not simply whether the conduct was offensive. The question is why the employee was being targeted.

What Can Workplace Harassment Look Like?

Harassment does not have to be physical. California regulations recognize several forms of potentially unlawful harassment, including verbal, physical, visual, and sexual conduct. [2]

Depending on the circumstances, examples could include:

• Racial slurs or derogatory comments
• Offensive jokes about someone’s religion or national origin
• Repeated comments about an employee’s age
• Mocking an employee because of a disability
• Offensive comments about someone’s sexual orientation
• Derogatory comments about gender identity or gender expression
• Sexually explicit jokes or comments
• Unwanted sexual advances
• Displaying offensive pictures, cartoons, messages, or objects
• Blocking someone’s movement or physically intimidating them
• Repeatedly sending offensive texts, emails, messages, or images
• Making any part of the job dependent upon accepting sexual advances (called “quid pro quo” harassment)

Harassment can happen in person, but it can also happen through email, text messages, workplace messaging systems, social media, video meetings, or other forms of communication.

The workplace has changed. Harassment does not have to happen while two people are standing inside the same office.

Does Harassment Have to Be Sexual?

No. This is one of the biggest misconceptions surrounding workplace harassment.

Sexual harassment is one type of unlawful harassment, but California law protects employees from harassment based on numerous protected characteristics, as described above.

Is One Offensive Comment Enough?

This is where workplace harassment cases become very fact-specific. The legal rule is that harassment is unlawful if it is “severe or pervasive,” and whether the conduct meets that standard depends on the specific facts and context.

Not every rude comment, inappropriate joke, or isolated incident creates a legal harassment claim.

California law directs courts to consider the totality of the circumstances when evaluating whether conduct rose to the level of unlawful harassment. California law also recognizes that a single incident can potentially be sufficient when the conduct has unreasonably interfered with an employee’s work performance or created an intimidating, hostile, or offensive environment. [3]

That means there is no simple mathematical formula. It is not necessarily, “This happened three times, so now it is harassment.”

The nature of the conduct matters. The frequency matters. The severity matters. The circumstances matter.

What Is a Hostile Work Environment?

“Hostile work environment” is another phrase that is often misunderstood.

Having a boss who is difficult, demanding, unfair, or unpleasant does not automatically mean you are working in an unlawful hostile work environment.

The hostility must be connected to a protected characteristic for it to fall within employment harassment laws.

For example, a supervisor who yells at everyone, regardless of sex, race, or other protected characteristic, may be a terrible manager while not creating an unlawful hostile work environment. But if that supervisor repeatedly uses racial slurs toward one employee or group of employees, mocks another employee’s disability, or makes degrading sexual comments toward employees, the legal analysis is very different.

California law also says that for harassment to be unlawful, the conduct must be reasonably hostile, offensive, intimidating, or abusive. This means that a reasonable person in the harassment victim’s position, meaning someone with the same protected characteristic, would consider the conduct to be hostile, offensive, intimidating, or abusive.

Again, context matters.

Difficult workplace (not automatically unlawful)	Potentially unlawful harassment
A supervisor who is rude, demanding, or unfair to everyone	Conduct targeting an employee because of a protected characteristic
A rude comment, inappropriate joke, or isolated incident, standing alone	Conduct severe or pervasive enough that a reasonable person in the employee’s position would find it hostile, offensive, intimidating, or abusive
Favoritism or general unfairness unrelated to a protected category	Racial slurs, mocking an employee’s disability, or degrading sexual comments
Bad management that treats everyone the same way	A single severe incident that unreasonably interferes with an employee’s work performance (Gov. Code § 12923)

Who Can Be the Harasser?

It does not have to be your boss, but the employer still needs to be aware of the conduct to be held liable for harassment by a peer or someone not in a supervisory role.

Depending on the circumstances, workplace harassment can involve:

• A supervisor
• A manager
• A coworker
• Someone in another department
• A client
• A customer
• A vendor
• Another nonemployee encountered through work

Employers are automatically liable for harassment by a supervisor or manager. For the employer to be liable for harassment by a non-supervisor, look for facts that indicate the employer should have been on notice of the harasser’s conduct, such as:

• Prior complaints against the harasser
• A manager observed some of the harassing behavior
• Someone told a manager about the harassing behavior
• The harassing conduct is done openly and/or is known by multiple colleagues, such that the employer cannot reasonably deny knowledge

What About Sexual Harassment?

Sexual harassment deserves particular attention because it can take many forms.

California’s Civil Rights Department describes sexual harassment as including unwanted sexual advances and visual, verbal, or physical conduct of a sexual nature. It can also include gender-based harassment. [1]

Examples include:

• Unwanted sexual advances
• Requests for sexual favors
• Sexual jokes or comments
• Comments about someone’s body
• Sexually explicit messages or images
• Unwanted touching
• Sexual gestures
• Displaying sexually suggestive materials
• Offering workplace benefits in exchange for sexual conduct
• Threatening negative employment consequences for rejecting sexual advances

Sexual harassment can occur between people of the same or different genders, and the conduct does not have to be motivated by sexual desire to potentially constitute prohibited harassment.

Can Harassment Happen Outside the Office?

Potentially, yes.

The fact that something happened outside the physical workplace does not necessarily mean it cannot be connected to someone’s employment.

Harassing conduct could potentially occur during a work trip, conference, company party, client event, off-site meeting, text message, video call, or other work-related setting.

Remote work did not eliminate workplace harassment. It simply created additional places where inappropriate conduct can occur.

What Should You Do If You Believe You Are Being Harassed?

Document what is happening.

Keep copies of relevant emails, text messages, direct messages, screenshots, written warnings, performance reviews, and other communications.

If someone makes an offensive comment in person or on a phone or video call, write down:

• What was said
• When it happened
• Where it happened
• Who said it
• Who witnessed it, if anyone

If your employer has a harassment reporting policy, review it and consider using the appropriate reporting process.

California requires employers to maintain harassment, discrimination, and retaliation prevention policies that include a complaint process providing for a timely response, impartial investigation, documentation, appropriate remedial options, and timely closure. The complaint mechanism also cannot require an employee to complain only to their immediate supervisor. [6]

Most importantly, preserve your own records where appropriate. Do not assume you will always have access to your company email, messaging platform, or other employer-controlled systems.

What Happens After You Report Harassment?

An employer must take a harassment complaint seriously.

California requires employers to take reasonable steps to prevent and correct wrongful workplace behavior. CRD guidance recommends prompt, thorough, and fair investigations and appropriate remedial action when misconduct is found. [6]

Employees are also protected against unlawful retaliation for reporting or opposing conduct they reasonably believe violates anti-harassment laws or for participating in certain investigations and proceedings.

California’s CRD explains that protected activity can include speaking out against harassment, participating in an investigation, seeking advice from the CRD, or filing a complaint. [7]

If you report harassment and suddenly find yourself being written up, demoted, removed from the schedule, excluded from opportunities, or terminated, document that too.

The retaliation may become a separate legal issue.

Frequently Asked Questions

Is a toxic workplace the same thing as an unlawful hostile work environment?

Not necessarily.

A workplace can be toxic, dysfunctional, unfair, or unpleasant without violating California’s harassment laws.

For workplace harassment to fall within FEHA, the conduct must have a connection to a protected characteristic, such as race, religion, sex, disability, age, sexual orientation, gender identity, national origin, and other protected characteristics. [1]

The distinction can be frustrating because workplace conduct can be extremely unfair and even abusive, without being illegal.

Bad management is not automatically illegal management.

Does my boss have to be the person harassing me?

No.

Harassment may come from supervisors, coworkers, clients, customers, vendors, or other people encountered through your employment. [4]

Who committed the harassment will, however, affect the legal analysis concerning an employer’s responsibility.

Can one incident constitute workplace harassment?

Potentially.

FEHA, at California Government Code section 12923, specifically provides that a single incident of harassing conduct may be sufficient to create a triable issue regarding the existence of a hostile work environment when the conduct has unreasonably interfered with the employee’s work performance or created an intimidating, hostile, or offensive environment. [3]

The severity and circumstances of the incident matter.

What is the difference between discrimination and harassment?

The terms are related, but they are not identical.

Discrimination requires an adverse employment actions or differences in the terms and conditions of employment because of a protected characteristic. Examples might include refusing to hire someone, terminating an employee, demoting an employee, denying a promotion, or paying someone differently because of a protected characteristic.

Harassment involves unwelcome conduct based on a protected characteristic that creates an offensive, intimidating, or abusive work environment. Harassment does not require an adverse employment action.

Sometimes the same situation can involve both discrimination and harassment.

Is bullying illegal in California?

Workplace bullying is not automatically unlawful harassment under FEHA.

If someone is rude, demeaning, aggressive, or difficult toward everyone regardless of protected characteristics, that behavior may be inappropriate without necessarily constituting unlawful harassment.

But if the bullying is directed at someone because of race, sex, disability, age, religion, sexual orientation, or another protected characteristic, different legal protections may apply. [1]

Can I be harassed while working remotely?

Yes.

Harassment can occur through emails, texts, video meetings, messaging applications, social media, phone calls, or other electronic communications. Harassment does not necessarily have to happen inside a traditional workplace. [5]

Can my employer retaliate against me for reporting harassment?

California law prohibits retaliation against employees for engaging in activities protected by FEHA.

Protected activities can include complaining about harassment, participating in an investigation, filing a complaint with the CRD, or otherwise opposing conduct the employee reasonably believes is unlawful. [7] This can include pushing back on a supervisor’s harassing conduct and thereafter experiencing some adverse employment action.

The legal analysis differs from harassment in that retaliation requires some adverse employment action, such as termination, demotion, discipline, loss of opportunities, schedule changes, transfers, or other negative employment actions when they are taken because of protected activity.

How long do I have to file a workplace harassment complaint in California?

Deadlines are extremely important. If you miss a legal deadline, you could lose the right to pursue your case.

The California Civil Rights Department states that, in general, an employment discrimination complaint must be filed with the CRD within three years of the alleged discriminatory act. [1]

Different deadlines can apply depending on the claim, applicable law, and circumstances. Employees should not wait until they believe a deadline is approaching before seeking legal advice.

You Have the Right to Work Without Unlawful Harassment

No employee should have to accept unlawful harassment as simply being “part of the job.”

At the same time, not every uncomfortable or even abusive workplace interaction creates a legal claim under California employment laws. That is why the facts matter so much.

What happened? How often did it happen? How serious was it? Who was involved? Why were you being targeted? Did management know? What happened after you reported it?

Those details can make the difference between inappropriate workplace behavior and conduct that may violate California law.

At Gomerman | Bourn & Associates, we represent California employees in matters involving workplace harassment, discrimination, retaliation, and wrongful termination.

If you believe what is happening at work has crossed the line from inappropriate behavior into unlawful harassment, contact our office to discuss your situation. We provide free confidential consultations.

You do not have to know exactly what legal term applies before asking questions about your rights.

Sources

[1] California Civil Rights Department, Employment Discrimination and Sexual Harassment FAQs. Official California guidance concerning FEHA, protected characteristics, workplace harassment, sexual harassment, employer coverage, and CRD complaint deadlines. (Civil Rights Department)

[2] California Civil Rights Department, FEHA Regulations, 2 CCR § 11019. California regulations identifying verbal, physical, visual, and sexual forms of harassment. (Civil Rights Department)

[3] California Government Code § 12923. California statutory guidance concerning hostile work environment harassment, including consideration of the totality of the circumstances and potentially actionable single incidents. (Leginfo)

[4] U.S. Equal Employment Opportunity Commission, “Harassment.” Federal guidance regarding unlawful harassment, severe or pervasive conduct, potential harassers, hostile work environments, and examples of offensive conduct. (EEOC)

[5] U.S. Equal Employment Opportunity Commission, Workplace Harassment Guidance. EEOC guidance explaining that harassment can be verbal, physical, or visual and may occur on or off the work site. (EEOC)

[6] California Civil Rights Department, “Workplace Harassment Prevention Guide for California Employers” and Sexual Harassment Fact Sheet. California guidance concerning employer harassment policies, complaint procedures, investigations, prevention, and corrective action. (Civil Rights Department)

[7] California Civil Rights Department, “Workplace Retaliation Is Against the Law.” California guidance regarding protected activity and retaliation following complaints of workplace harassment or discrimination. (Civil Rights Department)