Failure to Prevent Harassment, Discrimination, or Retaliation Under California Law

Introduction

California’s Fair Employment and Housing Act (“FEHA”) requires employers to take all reasonable steps to prevent harassment, discrimination, and retaliation in the workplace based on protected characteristics such as race, gender, age, or disability. Cal. Gov’t Code § 12940(k). If an employer fails to meet this duty and unlawful conduct occurs, the employer may be liable for damages—even without directly engaging in the misconduct. Northrop Grumman Corp. v. Workers’ Comp. Appeals Bd., 103 Cal.App.4th 1021, 1035 (2002).

Legal Standard: Essential Elements

To prove a claim for failure to prevent harassment, discrimination, or retaliation, a plaintiff must establish:

1. The plaintiff was an employee, job applicant, or contract worker for the employer

2. The plaintiff experienced actionable harassment, discrimination, or retaliation in the course of employment

3. The employer failed to take all reasonable steps to prevent the unlawful conduct

4. The plaintiff suffered harm

5. The failure to act was a substantial factor in causing that harm

A plaintiff cannot recover for failure to prevent if there is no underlying unlawful conduct. Dickson v. Burke Williams, Inc., 234 Cal.App.4th 1307, 1314 (2015).

What Are “Reasonable Steps”?

California law expects employers to be proactive and thorough. Reasonable preventative measures include:

• Publishing and disseminating a robust anti-harassment and anti-discrimination policy

• Conducting regular and legally-compliant employee and supervisor training

• Establishing clear, confidential, and accessible procedures for reporting complaints

• Investigating all complaints promptly, fairly, and thoroughly

• Implementing swift remedial action, including discipline when appropriate

• Employers must not simply respond; they must take temporary and permanent steps to end current violations and deter future ones.

  M.F. v. Pacific Pearl Hotel Mgmt. LLC, 16 Cal.App.5th 693, 701 (2017).

Employer Action Items

Employers should take these key steps to comply with FEHA’s mandate:

• Maintain and distribute written anti-harassment, discrimination, and retaliation policies to all employees

• Provide regular, updated training for staff and supervisors about workplace conduct and reporting responsibilities

• Offer confidential, accessible complaint procedures and ensure staff know how to use them

• Thoroughly investigate all reports, document findings, and take appropriate disciplinary action

• Review policies, procedures, and training at least annually to ensure continued effectiveness

• Employers who consistently follow these practices help ensure compliance and foster a workplace free from unlawful conduct.

Citations

Cal. Gov’t Code § 12940(k); Northrop Grumman Corp. v. Workers’ Comp. Appeals Bd., 103 Cal.App.4th 1021, 1035 (2002); M.F. v. Pacific Pearl Hotel Mgmt. LLC, 16 Cal.App.5th 693, 701 (2017); Trujillo v. North County Transit Dist., 63 Cal.App.4th 280, 286 (1998); Dickson v. Burke Williams, Inc., 234 Cal.App.4th 1307, 1314 (2015); Alamo v. Practice Mgmt. Info. Corp., 219 Cal.App.4th 466, 480 (2013).