Sexual Harassment in California
In California, sexual harassment is unwelcome conduct based on sex that creates a hostile or abusive work environment or where enduring it becomes a condition of employment. California recognizes three categories of harassment "because of sex": sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions (Gov. Code § 12940(j)(4)(C)). Critically, sexually harassing conduct need not be motivated by sexual desire.
Under the 2019 amendments codified in Government Code § 12923:
- A single incident of harassing conduct can create a triable issue if it unreasonably interfered with work performance or created an intimidating, hostile, or offensive environment (§ 12923(b))
- Plaintiffs need not prove tangible productivity declined (§ 12923(a))
- The "stray remarks" doctrine is rejected—discriminatory remarks may be relevant circumstantial evidence (§ 12923(c))
- The legal standard does not vary by workplace type (§ 12923(d))
Who is covered by California's sexual harassment law?
| Claim type | Employer size threshold | Source |
|---|---|---|
| Harassment claims | One or more employees | Gov. Code § 12940(j)(4)(A) |
| Discrimination claims | Five or more employees | Gov. Code § 12926(d) |
| Training mandate | Five or more employees | Gov. Code § 12950.1(h)(1) |
Employee counting: Employers "regularly employ" five or more if they do so for any part of the day when alleged conduct occurred, or employ five or more on a regular basis including seasonal industries. Employees located both inside and outside California are counted (2 Cal. Code Regs. § 11008(d)(1)(A), (d)(1)(C)).
Protected individuals: Employees, applicants, unpaid interns, volunteers, and persons providing services pursuant to a contract (Gov. Code § 12940(j)(1), (j)(5)). Independent contractors meeting a five-factor test are protected (Gov. Code § 12940(j)(5)).
How is California sexual harassment law different from federal law?
| Item | California | Federal baseline |
|---|---|---|
| Employer coverage threshold | 1 employee (harassment); 5 employees (discrimination/training) | 15 employees |
| Filing deadline (administrative) | 3 years from date of unlawful practice (Gov. Code § 12960(e)(5)) | 180 days (300 days if state agency) |
| Filing deadline (private suit after right-to-sue) | 1 year from notice (Gov. Code § 12965(c)(1)(D)) | 90 days |
| Damages cap | No statutory cap on compensatory or punitive damages | $50,000–$300,000 based on employer size |
| Employer liability for supervisor harassment | Strict liability; no Ellerth/Faragher affirmative defense | Vicarious liability with affirmative defense available |
| Personal liability of harassers | Individual employees personally liable (Gov. Code § 12940(j)(3)) | No individual liability under Title VII |
| Prevention duty | Affirmative statutory duty to take all reasonable steps to prevent harassment (Gov. Code § 12940(k)) | No mandatory prevention duty |
| Training mandate | Mandatory interactive training: 2 hours supervisory, 1 hour non-supervisory, every 2 years (Gov. Code § 12950.1) | No federal training mandate |
| Hostile environment standard | Single incident can suffice; no tangible productivity decline required; rejects "stray remarks" limitation (Gov. Code § 12923) | Severe or pervasive conduct required |
| Settlement agreement restrictions | Mandatory disclosure language required; 5-day review period for separation agreements (Gov. Code § 12964.5(a)(1)(B)(ii), (b)(1)(B)) | Speak Out Act limits only predispute NDAs |
When is an employer liable for sexual harassment?
Supervisor harassment: Strict liability applies regardless of employer knowledge. California explicitly rejected the federal Ellerth/Faragher affirmative defense framework in State Department of Health Services v. The Superior Court of Sacramento County (Cal. Supreme Court). The employer is liable even if it had no knowledge of the harassment.
Avoidable consequences defense: Employers can reduce damages—but not avoid liability—if they took reasonable steps to prevent harassment and the employee unreasonably failed to use them. The employer must also show that using those steps would have prevented some of the harm (State Department of Health Services).
Non-supervisor and third-party harassment: Employer liable only if it knew or should have known of the conduct and failed to take immediate and appropriate corrective action (Gov. Code § 12940(j)(1)).
Personal liability: Individual employees are personally liable for harassment they perpetrate, regardless of employer knowledge (Gov. Code § 12940(j)(3); 2 Cal. Code Regs. § 11019(b)(6)).
Ask Sawyer researches federal and state law to answer questions about your facts.
What training does my employer have to provide?
Covered employers: Those regularly employing five or more persons (Gov. Code § 12950.1(h)(1)).
| Category | Duration | Deadline | Source |
|---|---|---|---|
| Supervisory employees | 2 hours | Every 2 years; within 6 months of assuming supervisory position | Gov. Code § 12950.1(a)(1) |
| Non-supervisory employees | 1 hour | Every 2 years; within 6 months of hire | Gov. Code § 12950.1(a)(1) |
| Temporary/seasonal (<6 months) | Same as above | Within 30 days of hire OR 100 hours worked, whichever first; exemption if <30 days AND <100 hours | Gov. Code § 12950.1(f) |
Training must be: "Effective interactive training"—classroom, e-learning with trainer available within two business days, webinar, or CRD online courses; text-only training is not permitted (2 Cal. Code Regs. § 11024(a)(2)-(4); CRD FAQ).
Content requirements: Federal and state statutory provisions; prevention of abusive conduct; harassment based on gender identity, gender expression, and sexual orientation with practical examples (Gov. Code § 12950.1(a)(2)-(3)).
Employer payment: Training must be paid for by the employer and provided during work hours (Gov. Code § 12950.1; CRD FAQ).
Recordkeeping: Minimum two years—employee names, dates, certificates, materials, type, provider (2 Cal. Code Regs. § 11024).
Written policy: Employers must develop and distribute a written harassment prevention policy meeting 11 specified elements, including multiple complaint channels, confidentiality provisions, and anti-retaliation protections (2 Cal. Code Regs. § 11023(b)). Policy must be translated if 10% or more of workforce speaks a non-English language (2 Cal. Code Regs. § 11023(e)).
Next statewide training deadline: January 1, 2027 (CRD guidance).
What protections do victims of sexual assault or domestic violence have at work?
Current framework: Government Code § 12945.8 provides comprehensive protections for victims of domestic violence, sexual assault, stalking, or other qualifying violence. (Note: Labor Code § 230 applied only to actions on or before December 31, 2024, and is repealed January 1, 2035; § 12945.8 is the operative framework for 2025 incidents.)
Reasonable accommodations: Employers must provide accommodations for safety upon request, including transfer, modified schedule, changed work contact information, lock installation, safety procedures, and referrals (Gov. Code § 12945.8(e)(2)).
Interactive process: Timely, good faith interactive process required (Gov. Code § 12945.8(e)(4)).
Certification: Acceptable forms include police report, court order, documentation from medical professional or counselor, or other reasonable verification (Gov. Code § 12945.8(e)(7)(B)).
Confidentiality: Documentation identifying employee as victim must be kept confidential (Gov. Code § 12945.8(e)(7)(D)).
Anti-retaliation: Employers cannot retaliate for requesting accommodations (Gov. Code § 12945.8(e)(8)).
Can my employer make me sign a nondisclosure agreement?
Government Code § 12964.5 (Silenced No More Act) prohibits:
- Requiring nondisparagement agreements denying right to disclose "information about unlawful acts in the workplace" as condition of employment, continued employment, or for raise/bonus (§ 12964.5(a)(1)(B)(i))
- Including such provisions in separation agreements (§ 12964.5(b)(1)(A))
Mandatory inclusion language: Any such provision must include: "Nothing in this agreement prevents you from discussing or disclosing information about unlawful acts in the workplace, such as harassment or discrimination or any other conduct that you have reason to believe is unlawful" (§ 12964.5(a)(1)(B)(ii), (b)(1)(B)).
Procedural requirements for separation agreements: Notice of right to consult attorney; minimum five business days for review (§ 12964.5(b)(4)).
Negotiated settlement exception: Restrictions do not apply to voluntary, deliberate, informed negotiated settlement agreements resolving underlying claims filed in court, before administrative agency, in ADR, or through internal complaint process (§ 12964.5(d)).
How do I file a sexual harassment claim in California?
California Civil Rights Department (CRD):
| Step | Requirement |
|---|---|
| Intake form | Submit within 3 years from date of unlawful practice (Gov. Code § 12960(e)(5)) |
| Extensions | Up to 90 days if facts first obtained within 90 days after period expired; up to 1 year for minority status or identity discovery (Gov. Code § 12960(e)(6)) |
| Investigation | CRD conducts independent investigation; mandatory dispute resolution attempted |
| Right-to-sue | If CRD does not file civil action within 150 days, or upon investigation completion—no later than 1 year after filing (individual) or 2 years (group/class) (Gov. Code § 12965(c)(1)) |
| Civil action | 1 year from right-to-sue notice (Gov. Code § 12965(c)(1)(D)) |
Federal EEOC: 180 days (300 days if deferral state); 90 days to file suit after right-to-sue notice.
Tolling: Time to file civil action tolled during CRD administrative process (Gov. Code § 12960(f)(1)). Concurrent federal filing: one-year statute tolled until federal right-to-sue period expires or one year from CRD notice, whichever later (Gov. Code § 12965(e)).
Ask Sawyer researches federal and state law to answer questions about your facts.
Does San Francisco have additional sexual harassment protections?
San Francisco imposes additional obligations on city contractors beyond state law:
Coverage: Applies to entities with city contracts, excluding those with $5,000 or less annual value (threshold does not apply to property contracts >29 days) (Lab. & Emp. Code § 131.1(c)).
Geographic scope: Operations within San Francisco; on city-owned property outside San Francisco; work performed for the city within the United States; contractor's U.S. operations elsewhere (Lab. & Emp. Code § 131.1(d)).
Penalties: $50 per person per calendar day of discrimination; contract termination; forfeiture of contract moneys; debarment for up to two years for willful violations (Admin. Code § 12B.2(h)-(i)).
Protected characteristics: Explicitly includes weight and height in addition to sex (Police Code Art. 33).
Internal city employee process: 180-day filing deadline with Department of Human Resources EEO Division; make-whole remedies only (no punitive damages, attorney's fees, or pain and suffering).
Are there exceptions to California's sexual harassment law?
Religious associations: Excluded from "employer" definition unless portion subject to unrelated business income tax and regularly employs five or more persons (2 Cal. Code Regs. § 11008(d)(5)).
Parent/spouse/child employees: Excluded from FEHA "employee" definition (Gov. Code § 12926(c)).
Temporary workers: Considered employees of both temporary agency and client employer; trained by staffing agency, not client (Gov. Code § 12950.1(f); 2 Cal. Code Regs. § 11008(c)(5)).
Small employers (1–4 employees): Covered by harassment prohibition and prevention duty, but not subject to training mandate.