Harassing Conduct Defined

In California, employment law, particularly under the Fair Employment and Housing Act (FEHA), recognizes various forms of harassing conduct that can relate to wrongful termination.

Types of Harassing Conduct

1. Sexual Harassment: Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature. This includes quid pro quo harassment (where submission to such conduct is made a condition of employment) and creating a hostile work environment.
   • Example: A supervisor making continued advancements towards an employee, implying that their job security depends on their compliance. If the employee is terminated after rejecting such advances, it could be considered wrongful termination.
2. Racial Harassment: Derogatory comments, jokes, or slurs based on race or ethnicity. This also includes displaying racially offensive symbols.
   • Example: An employee consistently faces racial jokes and comments. Upon complaining or resisting such behavior, if they face termination, it would exemplify wrongful termination due to racial harassment.
3. Gender-Based Harassment: Discriminatory treatment or offensive comments based on gender, including gender identity and expression.
   • Example: Persistent derogatory remarks about an employee’s gender. If these remarks lead to an employee’s dismissal, either directly or through creating a hostile environment, it constitutes wrongful termination.
4. Disability Harassment: Mocking or belittling an individual because of their disability or perceived disability.
   • Example: An employee with a disability is constantly ridiculed about their condition. If they’re terminated, possibly under the guise of performance issues stemming from their disability, it could be seen as wrongful termination.
5. Age-Based Harassment: Negative comments or actions based on an employee’s age, particularly targeting older employees.
   • Example: Repeatedly making derogatory comments about an employee’s age, leading to their eventual termination, could be a case of wrongful termination related to age-based harassment.
6. Religious Harassment: Insults, derogatory comments, or unequal treatment based on religious beliefs or practices.
   • Example: An employee is harassed for wearing religious attire or for their religious practices. If they are terminated due to their complaints about this harassment, it could be wrongful termination.
7. Sexual Orientation Harassment: Harassment based on someone’s real or perceived sexual orientation.
   • Example: An employee faces derogatory comments about their sexual orientation and is later fired after raising concerns, suggesting wrongful termination.
8. Retaliation for Complaints: Targeting employees for participating in harassment investigations or for filing harassment complaints.
   • Example: An employee who reports harassment and then faces negative job consequences, culminating in termination, could be a victim of retaliatory wrongful termination.

Conclusion

In each of these examples, the key element is the link between the harassing conduct and the termination. Wrongful termination in the context of harassment is established when an employee’s termination is directly or indirectly a result of their response to, or the existence of, harassing behavior. This link can be challenging to prove but is central to such legal claims in California. Employers must be vigilant in preventing harassment and ensuring that termination decisions are not influenced by discriminatory factors. Employees, on the other hand, should be aware of their rights and the protections afforded to them under California law.

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2523. “Harassing Conduct” Explained

Harassing conduct may include, but is not limited to, [any of the following:]

[a. Verbal harassment, such as obscene language, demeaning comments, slurs, [or] threats [or] [describe other form of verbal harassment];] [or]

[b. Physical harassment, such as unwanted touching, assault, or physical interference with normal work or movement;] [or]

[c. Visual harassment, such as offensive posters, objects, cartoons, or drawings;] [or]

[d.  Unwanted sexual advances;] [or]

[e. [Describe other form of harassment if appropriate, e.g., derogatory, unwanted, or offensive photographs, text messages, Internet postings].]

New September 2003; Revised December 2007, December 2015

Directions for Use

Read this instruction with CACI No. 2521A, Work Environment Harassment—Conduct Directed at Plaintiff—Essential Factual Elements—Employer or Entity Defendant; CACI No. 2521B, Work Environment Harassment—Conduct Directed at Others—Essential Factual Elements—Employer or Entity Defendant; CACI No. 2522A, Work Environment Harassment—Conduct Directed at Plaintiff—Essential Factual Elements—Individual Defendant; or CACI No. 2522B, Work Environment Harassment—Conduct Directed at Others—Essential Factual Elements—Individual Defendant. Read also CACI No. 2524, “Severe or Pervasive” Explained, if appropriate.

Sources and Authority

• Harassment Prohibited Under Fair Employment and Housing Act. Government Code section 12940(j)(1).
• “Harassment” Defined. Cal. Code Regs., tit. 2, § 11019(b)(2).
• “Harassment is distinguishable from discrimination under the FEHA. ‘[D]iscrimination refers to bias in the exercise of official actions on behalf of the employer, and harassment refers to bias that is expressed or communicated through interpersonal relations in the workplace.’ ” (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 869 [172 Cal.Rptr.3d 732].)
• “[H]arassment consists of a type of conduct not necessary for performance of a supervisory job. Instead, harassment consists of conduct outside the scope of

necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives. Harassment is not conduct of a type necessary for management of the employer’s business or performance of the supervisory employee’s job.” (Reno v. Baird (1998) 18 Cal.4th 640, 645–646 [76 Cal.Rptr.2d 499, 957 P.2d 1333],

internal citations omitted.)

• “No supervisory employee needs to use slurs or derogatory drawings, to physically interfere with freedom of movement, to engage in unwanted sexual advances, etc., in order to carry out the legitimate objectives of personnel management. Every supervisory employee can insulate himself or herself from claims of harassment by refraining from such conduct.” (Serri, supra, 226 Cal.App.4th at p. 869.)
• “We conclude, therefore, that the Legislature intended that commonly necessary personnel management actions such as hiring and firing, job or project assignments, office or work station assignments, promotion or demotion, performance evaluations, the provision of support, the assignment or nonassignment of supervisory functions, deciding who will and who will not attend meetings, deciding who will be laid off, and the like, do not come within the meaning of harassment. These are actions of a type necessary to carry out the duties of business and personnel management. These actions may retrospectively be found discriminatory if based on improper motives, but in that event the remedies provided by the FEHA are those for discrimination, not harassment. Harassment, by contrast, consists of actions outside the scope of job duties which are not of a type necessary to business and personnel management. This significant distinction underlies the differential treatment of harassment and discrimination in the FEHA.” (Reno, supra, 18 Cal.4th at pp. 646–647, internal citation omitted.)
• “[W]e can discern no reason why an employee who is the victim of discrimination based on some official action of the employer cannot also be the victim of harassment by a supervisor for abusive messages that create a hostile working environment, and under the FEHA the employee would have two separate claims of injury.” (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 707

[101 Cal.Rptr.3d 773, 219 P.3d 749].)

• “Here, [plaintiff]’s discrimination claim sought compensation for official employment actions that were motivated by improper bias. These discriminatory actions included not only the termination itself but also official employment actions that preceded the termination, such as the progressive disciplinary warnings and the decision to assign [plaintiff] to answer the office telephones during office parties. [Plaintiff]’s harassment claim, by contrast, sought compensation for hostile social interactions in the workplace that affected the workplace environment because of the offensive message they conveyed to [plaintiff]. These harassing actions included [supervisor]’s demeaning comments to [plaintiff] about her body odor and arm sores, [supervisor]’s refusal to respond to [plaintiff]’s greetings, [supervisor]’s demeaning facial expressions and gestures

toward [plaintiff], and [supervisor]’s disparate treatment of [plaintiff] in handing out small gifts. None of these events can fairly be characterized as an official employment action. None involved [supervisor]’s exercising the authority that [employer] had delegated to her so as to cause [employer], in its corporate capacity, to take some action with respect to [plaintiff]. Rather, these were events that were unrelated to [supervisor]’s managerial role, engaged in for her own purposes.” (Roby, supra, 47 Cal.4th at pp. 708–709, original italics, footnote omitted.)

• “[S]ome official employment actions done in furtherance of a supervisor’s managerial role can also have a secondary effect of communicating a hostile message. This occurs when the actions establish a widespread pattern of bias. Here, some actions that [supervisor] took with respect to [plaintiff] are best characterized as official employment actions rather than hostile social interactions in the workplace, but they may have contributed to the hostile message that [supervisor] was expressing to [plaintiff] in other, more explicit ways. These would include [supervisor]’s shunning of [plaintiff] during staff meetings, [supervisor]’s belittling of [plaintiff]’s job, and [supervisor]’s reprimands of [plaintiff] in front of [plaintiff]’s coworkers. Moreover, acts of discrimination can provide evidentiary support for a harassment claim by establishing discriminatory animus on the part of the manager responsible for the discrimination, thereby permitting the inference that rude comments or behavior by that same manager were similarly motivated by discriminatory animus.” (Roby, supra, 47 Cal.4th at p. 709.)
  • “[A]busive conduct that is not facially sex specific can be grounds for a hostile environment sexual harassment claim if it is inflicted because of gender, i.e., if men and women are treated differently and the conduct is motivated by gender bias.” (Pantoja v. Anton (2011) 198 Cal.App.4th 87, 130 [129 Cal.Rptr.3d 384], original italics.)

Secondary Sources

Chin et al., California Practice Guide: Employment Litigation, Ch. 10-B, Sexual Harassment, ¶¶ 10:125–10:155 (The Rutter Group)

1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Sexual and Other Harassment, §§ 3.13, 3.36

2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under Equal Employment Opportunity Laws, § 41.80[1][a][i] (Matthew Bender)

11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment Discrimination, § 115.36 (Matthew Bender)

California Civil Practice: Employment Litigation §§ 2:56, 2:56.50 (Thomson Reuters)

___________________

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Harassment by a Supervisor

2525. Harassment—“Supervisor” Defined (Gov. Code, § 12926(t))

[Name of alleged harasser] was a supervisor of [name of defendant] if [he/ she/nonbinary pronoun] had any of the following:

1. The authority to hire, transfer, promote, assign, reward, discipline, [or] discharge [or] [insert other employment action] other employees [or effectively to recommend any of these actions];
2. The responsibility to act on other employees’ grievances [or effectively to recommend action on grievances]; or
3. The responsibility to direct other employees’ daily work activities.

[Name of alleged harasser]’s exercise of this authority or responsibility must not be merely routine or clerical, but must require the use of independent judgment.

New September 2003; Revised June 2006, December 2015, December 2022

Directions for Use

The FEHA’s definition of “supervisor” refers to the “authority” for factor (a) and the “responsibility” for factors (b) and (c). The difference, if any, between “authority” and “responsibility” as used in the statute is not clear. The FEHA’s definition of “supervisor” also expressly refers to authority and responsibility over “other employees.” (Gov. Code, § 12926(t).) The statute further requires that “the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment.” (See Gov. Code, § 12926(t), italics added.) However, at least one court has found the independent-judgment requirement to be applicable to the responsibility for factor (c). (See Chapman v. Enos (2004) 116 Cal.App.4th 920, 930−931 [10 Cal.Rptr.3d 852], italics added.) Therefore, the last sentence of the instruction refers to “authority or responsibility.”

Sources and Authority

• Harassment Prohibited Under Fair Employment and Housing Act. Government Code section 12940(j)(1).
• “Supervisor” Defined. Government Code section 12926(t).
• “The FEHA imposes two standards of employer liability for sexual harassment, depending on whether the person engaging in the harassment is the victim’s supervisor or a nonsupervisory coemployee. The employer is liable for harassment by a nonsupervisory employee only if the employer (a) knew or should have known of the harassing conduct and (b) failed to take immediate and appropriate corrective action. This is a negligence standard. Because the FEHA imposes this negligence standard only for harassment ‘by an employee

other than an agent or supervisor’ by implication the FEHA makes the employer strictly liable for harassment by a supervisor.” (State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1040–1041 [6 Cal.Rptr. 3d 441, 79 P.3d 556], internal citations omitted.)

• “Unlike discrimination in hiring, the ultimate responsibility for which rests with the employer, sexual or other harassment perpetrated by a supervisor with the power to hire, fire and control the victimized employee’s working conditions is a particularly personal form of the type of discrimination which the Legislature sought to proscribe when it enacted the FEHA.” (Matthews v. Superior Court (1995) 34 Cal.App.4th 598, 605–606 [40 Cal.Rptr.2d 350].)
• “This section has been interpreted to mean that the employer is strictly liable for the harassing actions of its supervisors and agents, but that the employer is only liable for harassment by a coworker if the employer knew or should have known of the conduct and failed to take immediate corrective action. Thus, characterizing the employment status of the harasser is very significant.” (Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1046 [58 Cal.Rptr.2d 122], internal citations omitted.)
• “The case and statutory authority set forth three clear rules. First, . . . a supervisor who personally engages in sexually harassing conduct is personally liable under the FEHA. Second, . . . if the supervisor participates in the sexual harassment or substantially assists or encourages continued harassment, the supervisor is personally liable under the FEHA as an aider and abettor of the harasser. Third, under the FEHA, the employer is vicariously and strictly liable for sexual harassment by a supervisor.” (Fiol v. Doellstedt (1996) 50 Cal.App.4th 1318, 1327 [58 Cal.Rptr.2d 308].)
• “[W]hile an employer’s liability under the [FEHA] for an act of sexual harassment committed by a supervisor or agent is broader than the liability created by the common law principle of respondeat superior, respondeat superior principles are nonetheless relevant in determining liability when, as here, the sexual harassment occurred away from the workplace and not during work hours.” (Doe, supra, 50 Cal.App.4th at pp. 1048–1049.)
• “The FEHA does not define ‘agent.’ Therefore, it is appropriate to consider general principles of agency law. An agent is one who represents a principal in dealings with third persons. An agent is a person authorized by the principal to conduct one or more transactions with one or more third persons and to exercise a degree of discretion in effecting the purpose of the principal. A supervising employee is an agent of the employer.” (Fiol, supra, 50 Cal.App.4th at p. 1328, internal citations omitted.)
• “A supervisor who, without more, fails to take action to prevent sexual harassment of an employee is not personally liable as an aider and abettor of the harasser, an aider and abettor of the employer or an agent of the employer.” (Fiol, supra, 50 Cal.App.4th at p. 1331.)
• “[W]hile full accountability and responsibility are certainly indicia of supervisory

power, they are not required elements of . . . the FEHA definition of supervisor. Indeed, many supervisors with responsibility to direct others using their independent judgment, and whose supervision of employees is not merely routine or clerical, would not meet these additional criteria though they would otherwise be within the ambit of the FEHA supervisor definition.” (Chapman, supra, 116 Cal.App.4th at p. 930, footnote omitted.)

• “Defendants take the position that the court’s modified instruction is, nonetheless, accurate because the phrase ‘responsibility to direct’ is the functional equivalent of being ‘fully accountable and responsible for the performance and work product of the employees… ’ In this, they rely on the

dictionary definition of ‘responsible’ as ‘marked by accountability.’ But as it relates to the issue before us, this definition is unhelpful for two reasons. First, one can be accountable for one’s own actions without being accountable for those of others. Second, the argument appears to ignore the plain language of the statute which itself defines the circumstances under which the exercise of the responsibility to direct will be considered supervisory, i.e., ‘if……………………………………………… [it] is not of a

merely routine or clerical nature, but requires the use of independent judgment.’ ” (Chapman, supra, 116 Cal.App.4th at pp. 930–931.)

Secondary Sources

Chin et al., California Practice Guide: Employment Litigation, Ch. 10-A, Sources Of Law Prohibiting Harassment, ¶ 10:17 (The Rutter Group)

Chin et al., California Practice Guide: Employment Litigation, Ch. 10-D, Employer Liability For Workplace Harassment, ¶¶ 10:308, 10:310, 10:315–10:317, 10:321, 10:322 (The Rutter Group)

Chin et al., California Practice Guide: Employment Litigation, Ch. 10-E, Harasser’s Individual Liability, ¶ 10:499 (The Rutter Group)

1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Sexual and Other Harassment, § 4.21

2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under Equal Employment Opportunity Laws, § 41.80 (Matthew Bender)

11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment Discrimination, §§ 115.20, 115.36, 115.54 (Matthew Bender) California Civil Practice: Employment Litigation § 2:56.50 (Thomson Reuters)

Call 310-312-1100 Now to schedule a time to discuss your matter with Attorney John Michael Jensen.