WHAT IS AND IS NOT SEXUAL HARASSMENT?

Defining Sexual Harassment in FEHA Regulations

When it comes to California’s  Fair Employment and Housing Act (FEHA)—the best way to figure out your rights is to go to the source. Go to the FEHA regulations that provide a road map on what the legislation means. 

1.1 General Prohibition

Under 2 CCR § 11029, it is unlawful “for any person” to discriminate or harass on the basis of sex, gender identity, gender expression or related conditions (e.g., pregnancy). The regulations incorporate the broad FEHA mandate to eliminate adverse treatment stemming from sex-based stereotypes or conduct of a sexual nature (law.cornell.edu).

1.2 Key Definitions (2 CCR § 11030)

• “Sex” includes pregnancy, childbirth, related medical conditions, gender identity or expression, and perception by a third party of any of these (law.cornell.edu).
• “Harassment” means unwelcome verbal, physical, or visual conduct based on a protected characteristic that is sufficiently severe or pervasive to alter the conditions of employment and create an abusive work environment (calcivilrights.ca.gov).
• “Sex Stereotype” includes assumptions about gender roles or an individual’s abilities based on myths or generalizations (law.cornell.edu).

2. Two Categories of Sexual Harassment

2.1 Quid Pro Quo

– Definition: Conditioning an employment benefit (e.g., hiring, promotion, continued employment) on submission to sexual advances or other conduct based on sex.
– Regulatory Source: 2 CCR § 11030(f)(1) explicitly labels this “quid pro quo” harassment (calcivilrights.ca.gov).
– Example: A supervisor tells an employee, “If you want that raise, you’ll have to go on a date with me.”

2.2 Hostile Work Environment

– Definition: Unwelcome conduct of a sexual nature that is severe or pervasive enough to interfere with work performance or create an intimidating, hostile, or offensive environment. Conduct need not be motivated by sexual desire—meanness or bigotry suffices (calcivilrights.ca.gov, calcivilrights.ca.gov).
– Subjective & Objective Standards: The victim must actually perceive the environment as hostile (subjective), and a reasonable person must find it hostile or abusive (objective) (calcivilrights.ca.gov).
– Single-Act Liability: A single severe act (e.g., nonconsensual physical touching) can suffice, without showing repetitiveness (calcivilrights.ca.gov).
– Example: An employee repeatedly receives lewd emails and finds their workstation defaced with explicit images, impeding their ability to concentrate and feel safe.

3. What Does Not Constitute Harassment

• Mutual, Consensual Flirting
  Voluntary, welcomed interactions—even if romantic—do not qualify .
• Isolated, Innocuous Jokes
  A one-time, inoffensive comment that neither offends nor targets a protected class typically falls outside FEHA liability.
• Performance-Based Critiques Unrelated to Sex
  Constructive feedback on work quality, provided objectively and without sexual content, is not harassment.

4. FEHA Employer Obligations (2 CCR § 11034)

4.1 Prevention and Training

• Anti-harassment policy: Must define prohibited conduct, reporting channels, and disciplinary measures.
• Mandatory training: Supervisors and employees must receive interactive training at least every two years, covering definitions, examples, and complaint procedures. (Gov. Code § 12950.1; regulations at 2 CCR § 11034) (calcivilrights.ca.gov).

4.2 Reporting Sexual Harassment

Employers must investigate complaints “promptly and thoroughly,” take corrective action if harassment is found, and protect complainants from retaliation (calcivilrights.ca.gov). This is why promptly reporting sexual harassment to management is so important. If management fails to investigate, or engages in a biased investigation, the employer will have ratified the harassment and render themselves liable two times over. Moreover, if they retaliate against you for reporting, that is another and distinct violation, typically easier to prove. Reporting sexual harassment in writing to managers or HR or both is a power move that any employee subject to harassment should do and do promptly. You can also report to the Civil Rights Department.  Make these reports in writing, preferably in email, and be certain to copy your personal email so that you have a record of having complained. 

5. Illustrative Examples

6. Case Law Spotlight: Roby v. McKesson (2009)

In Roby v. McKesson Corp., the California Supreme Court clarified that “harassment” under FEHA can encompass discriminatory conduct—even official personnel decisions—when they communicate a hostile message to an employee. The Court held that excluding management actions (e.g., discipline, termination) that communicate an unlawful hostile message would be error.  Thus, under FEHA, both overt sexual conduct and adverse actions taken in a discriminatory manner because of sex may support a sexual harassment claim.

7. Remedies and Reporting

• DFEH Filings: Victims may file an administrative complaint with the Department of Fair Employment and Housing (DFEH) within three years of the last harassing act.
• Legal Remedies: Potential relief includes back pay, reinstatement, compensatory damages (emotional distress), and punitive damages for malice or oppression (calcivilrights.ca.gov).
• Anti-Retaliation: FEHA prohibits retaliation against individuals who oppose harassment or participate in related investigations (Gov. Code § 12940(h)).

Conclusion

Sexual harassment under FEHA is a nuanced area, combining statutory law, rigorous regulations (2 CCR §§ 11029–11034), and evolving case law. Employers must adopt clear policies, provide comprehensive training, and investigate complaints swiftly. Individuals should understand both the broad scope of prohibited conduct—and the clear boundaries of what does not qualify—to navigate, prevent, and address harassment effectively.