Harassing Conduct in California Workplaces: Legal Standards and Employer Guidance

Introduction

California’s Fair Employment and Housing Act (FEHA) prohibits workplace harassment based on protected characteristics such as race, gender, disability, or age. Cal. Gov’t Code § 12940(j)(1). Harassment, distinct from discrimination, is defined by behaviors that express bias through interpersonal relationships—not through business management actions. Cal. Code Regs. tit. 2, § 11019(b)(2).

What Qualifies as Harassing Conduct

“Harassing conduct” under California law refers to a broad range of unwanted workplace behaviors that are outside the scope of necessary job performance. These actions are typically motivated by meanness, bigotry, or personal gratification, rather than legitimate personnel management. Reno v. Baird, 18 Cal. 4th 640, 645–46 (Cal. 1998).

Common Examples

• Verbal harassment: Obscene language, demeaning comments, slurs, threats, ridicule, or other verbal abuses that are not needed for legitimate management. Serri v. Santa Clara Univ., 226 Cal. App. 4th 830, 869 (Cal. Ct. App. 2014).

• Physical harassment: Unwanted touching, assault, or interference with an employee’s freedom of movement.

• Visual harassment: Offensive posters, objects, cartoons, or drawings placed or displayed in the workplace.

• Unwanted sexual advances: Any unwelcome sexual attention, gestures, or invitations, whether verbal or physical.

• Electronic or contemporary harassment: Derogatory or offensive photographs, text messages, emails, or Internet postings.

• All these forms are outside the legitimate scope of job duties and can expose employers to legal liability. Serri, 226 Cal. App. 4th at 869.

The Distinction: Harassment vs. Discrimination

Discrimination refers to bias in business decisions–like hiring, firing, or promotions–while harassment is bias conveyed through personal conduct in the workplace. Serri, 226 Cal. App. 4th at 869. Personnel management actions performed for legitimate business reasons do not constitute harassment, though they may give rise to discrimination claims if motivated by bias. Reno, 18 Cal. 4th at 646–47.

Examples from Case Law

California courts recognize that harassment can include hostile or abusive social interactions, facial expressions, gestures, or social exclusion. Roby v. McKesson Corp., 47 Cal. 4th 686, 708–09 (Cal. 2009). Some official employment actions, if part of a larger pattern of hostility, may also support a harassment claim by communicating a hostile message, especially when linked to discriminatory animus. Roby, 47 Cal. 4th at 709.

Conduct that is not overtly sexual but reflects gender bias—such as treating men and women differently—can support a sexual harassment claim. Pantoja v. Anton, 198 Cal. App. 4th 87, 130 (Cal. Ct. App. 2011).

Employer Guidance

Employers can reduce risk and safeguard their workplace by:

• Publishing and regularly updating anti-harassment policies that detail prohibited behaviors.

• Training managers and employees on recognizing and responding to all forms of harassment, including digital communications.

• Promptly investigating all complaints, with impartial procedures and documentation.

• Drawing clear boundaries between legitimate personnel management and personal conduct.

• Applying discipline consistently, regardless of rank or position.

• Compliance with these steps helps foster a respectful culture and protects against legal liability.

Conclusion

California defines harassing conduct broadly to ensure workplace protections go beyond business management decisions. Any verbal, physical, visual, sexual, or electronic behavior outside the scope of legitimate job duties, motivated by bias, meanness, or personal gratification, is prohibited by law. Employers that educate, monitor, and enforce compliance foster dignity, respect, and legal safety in their workplaces.

Citations

Cal. Gov’t Code § 12940(j)(1); Cal. Code Regs. tit. 2, § 11019(b)(2); Reno v. Baird, 18 Cal. 4th 640, 645–47 (Cal. 1998); Serri v. Santa Clara Univ., 226 Cal. App. 4th 830, 869 (Cal. Ct. App. 2014); Roby v. McKesson Corp., 47 Cal. 4th 686, 708–09 (Cal. 2009); Pantoja v. Anton, 198 Cal. App. 4th 87, 130 (Cal. Ct. App. 2011).