California Sexual Harassment Lawyer

The short answer

Harassment at work is unlawful in California no matter how small the employer is. That is the single most important thing to know, because it is where people most often assume they are not covered.

For discrimination, FEHA applies to employers with five or more employees. For harassment, the statute uses a different definition.

The one-employee rule

Government Code § 12940(j)(4)(A) defines the term for harassment purposes only:

“For purposes of this subdivision only, ‘employer’ means any person regularly employing one or more persons or regularly receiving the services of one or more persons providing services pursuant to a contract…”

Compare the general FEHA definition at § 12926(d), which governs discrimination: “‘Employer’ includes any person regularly employing five or more persons…”

The Civil Rights Department states the practical result without qualification: “Harassment is prohibited in all workplaces, even those with fewer than five employees.”

Who is protected

Section 12940(j)(1) makes it unlawful to harass “an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract.” CRD restates the same coverage.

One caveat worth being precise about: “a person providing services pursuant to a contract” is a defined term under § 12940(j)(5), with a three-part test covering control over performance, being customarily engaged in an independently established business, and control over time, place and tools. Not every independent contractor meets it. If you were engaged as a contractor, that is a question to work through rather than assume either way.

The two forms harassment takes

Quid pro quo — a job benefit or detriment tied to submitting to unwelcome conduct. A promotion, a schedule, a shift assignment, or continued employment made conditional on a sexual demand.

Hostile work environment — conduct severe or pervasive enough to alter the conditions of employment. This is the more common claim and the more contested one; it is covered in more depth on the hostile work environment page.

A single incident can be enough

This is where California law is unusually explicit. Government Code § 12923(b) states:

“A single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment if the harassing conduct has unreasonably interfered with the plaintiff’s work performance or created an intimidating, hostile, or offensive working environment.”

Note the condition attached to that sentence — it is part of the rule, not decoration. But the premise that harassment must be repeated before it counts is not the law in California.

What tends to matter in these cases

• Contemporaneous records. A note written the same week carries weight a recollection written a year later does not.
• Who else saw it. Witnesses, and whether others experienced similar conduct.
• What the employer did after learning. The response, or absence of one, is frequently the center of the case.
• The sequence afterwards. If conditions worsened after a complaint, that may be a separate retaliation claim on its own.

What happens when you contact us

People hesitate to make this call, so it is worth setting out what it involves.

The consultation is free and confidential. Nothing is filed because you asked a question, no one is contacted, and your employer is not notified. You are not committing to anything by describing what happened.

If we are not the right firm for your situation, we will say so rather than take the matter on. And if you would rather not put any of it in writing yet, call the firm instead — there is no requirement to send documents before you have spoken to anyone.

What helps most, whenever you are ready, is the sequence: what happened, roughly when, who else was present, and what the employer did once it knew.

If it is still happening

Different considerations apply when you are still in the job. There is no requirement to resign before getting advice, and leaving is not a precondition to a claim — nor is staying a reason a claim gets weaker.

What tends to matter is the record built while events are fresh: what happened and when, who else was present, what you reported and to whom, and what the employer did next. That can be assembled quietly, without anything being filed and without your employer being contacted.

If conditions worsen after you raise it, that change is itself significant and may support a separate claim — see workplace retaliation.

Talking to us

These conversations are difficult to start. Consultations are free and confidential, and nothing is filed because you asked a question. If you would rather talk than write it down, a phone call is the place to start.

The firm’s founder, Michael Chang, previously served as staff counsel for a Fortune 500 company, which included seeing how internal complaints are received, routed and documented from the inside.