The California Fair Employment and Housing Act (FEHA) makes it unlawful for an employer to harass an employee based on sex or gender. Gov. Code § 12940(j)(1).

To establish a prima facie case of sex/gender discrimination, an employee must show that

1. she was a member of a protected class,
2. she was qualified for the position sought or was performing competently in the position held,
3. she suffered an adverse employment action, and
4. some other circumstance suggests discriminatory motive.

Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 323.

An adverse employment action is an action that materially affects the terms and conditions of employment. Patten v. Grant Joint Union High School Dist. (2005) 134 Cal.App.4th 1378, 1387. Materiality may encompass not only ultimate employment decisions but also the “entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee’s job performance or opportunity for advancement in his or her career.” Id.

Sex/Gender Harassment

Gender/sex harassment under the FEHA generally consists of bias that is expressed or communicated through interpersonal relationships in the workplace. Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 706-707. “[H]arassment focuses on situations in which the social environment of the workplace becomes intolerable because the harassment (whether verbal, physical, or visual) communicates an offensive message to the harassed employee.” Id. at 706.

To establish a prima facie case of harassment under the FEHA, the plaintiff must show that:

1. he was a member of a protected class,
2. he was subjected to unwelcome harassment based on the protected status, and
3. the harassment unreasonably interfered with his work performance by creating an intimidating, hostile, or offensive work environment.

Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 876.

With respect to the third element, “‘[h]arassment cannot be occasional, isolated, sporadic, or trivial; rather the plaintiff must show a concerted pattern of harassment of a repeated, routine or a generalized nature.’” Aguilar v. Avis Rent A Car Sys., Inc. (1999) 21 Cal.4th 121, 131. The harassment must be “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive environment,” as judged by the reasonable person belonging to the plaintiff’s protected class. Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 877.

Retaliation for Opposing Discrimination and Harassment

FEHA makes it unlawful for the employer to discharge or discriminate against an employee because she has “opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.” Gov. Code § 12940(h). In order to establish a prima facie case of retaliation under FEHA, a plaintiff must show:

1. she engaged in a protected activity,
2. the employer subjected the employee to an adverse employment action, and
3. a causal link existed between the protected activity and the employer’s action.

Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.

Failure to Prevent Discrimination and Harassment

FEHA prohibits an employer from failing “to take all reasonable steps necessary to prevent discrimination and harassment from occurring.” Gov. Code § 12940(k). When an employee seeks to recover damages based on a claim of failure to prevent harassment, the employee must show three elements:

1. the employee was subjected to harassment,
2. the employer failed to take all reasonable steps to prevent harassment, and
3. this failure caused the employee to suffer injury, damage, loss, or harm.

Caldera v. Dept. of Corr. and Rehab. (2018) 25 Cal.App.5th 31, 43-44.

Supervisor vs. Non-supervisor

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 non-supervisory co-employee.

The employer is liable for harassment by a non-supervisory employee only if the employer:

1. knew or should have known of the harassing conduct, and
2. failed to take immediate and appropriate corrective action.

Gov. Code § 12940(j)(1). This is a negligence standard. State Dept. of Health Serv. v. Super. Ct. (2003) 31 Cal.4th 1026, 1040-41.

Conversely, “an employer is strictly liable for all acts of sexual harassment by a supervisor.” State Dept. of Health Serv. v. Super. Ct. (2003) 31 Cal.4th 1026, 1042.

FEHA defines a “supervisor” as “any individual having the authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend that action, if, in connection with the foregoing, the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment.” Gov. Code § 12926(t).

Summary Judgment

When an employer seeks summary judgment in an employment discrimination case, the initial burden rests with the employer to show that no unlawful discrimination occurred. The employer can satisfy this initial burden by either

1. undermining an element of plaintiff’s prima facie case, or
2. providing a legitimate non-discriminatory reason for the adverse employment action.

Cornell v. Berkeley Tennis Club (2017) 18 Cal.App.5th 908, 926.

“[A] plaintiff’s ‘suspicions of improper motives... primarily based on conjecture and speculation’ are not sufficient to raise a triable issue of fact.” Kerr v. Rose (1990) 216 Cal.App.3d 1551, 1564.

A legitimate non-discriminatory reason is one that is facially unrelated to prohibited bias and which, if true, would preclude a finding of discrimination. Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 358. Once a defendant employer articulates such a reason, the burden shifts to the plaintiff employee to establish that the defendant intentionally discriminated against her. Cornell v. Berkeley Tennis Club (2017) 18 Cal.App.5th 908, 942. The plaintiff must offer substantial evidence that the employer’s stated non-discriminatory reason for the adverse action was untrue or pretextual, or evidence the employer acted with a discriminatory animus, or a combination of the two, such that a reasonable trier of fact could conclude the employer engaged in intentional discrimination. Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1005.

Avoidable Consequences Doctrine

Under the avoidable consequences doctrine, “a person injured by another’s wrongful conduct will not be compensated for damages that the injured person could have avoided by reasonable effort or expenditure.” State Dept. of Health Serv. v. Super. Ct. (2003) 31 Cal.4th 1026, 1043. The doctrine applies in FEHA actions against an employer for hostile environmental sexual harassment by a supervisor. State Dept. of Health Serv. v. Super. Ct. (2003) 31 Cal.4th 1026, 1044.

The doctrine consists of three elements:

1. the employer took reasonable steps to prevent and correct workplace sexual harassment;
2. the employee unreasonably failed to use the preventive and corrective measures that the employer provided; and
3. reasonable use of the employer’s procedures would have prevented at least some of the harm that the employee suffered.

State Dept. of Health Serv. v. Super. Ct. (2003) 31 Cal.4th 1026, 1044.

Because this doctrine presents an affirmative defense, the defendant bears the burden of pleading and proving its applicability. Id.

Note that “[t]his defense will allow the employer to escape liability for those damages, and only those damages, that the employee more likely than not could have prevented with reasonable effort and without undue risk, expense, or humiliation, by taking advantage of the employer’s internal complaint procedures appropriately designed to prevent and eliminate sexual harassment.” State Dept. of Health Serv. v. Super. Ct. (2003) 31 Cal.4th 1026, 1044. “An employer that has exercised reasonable care nonetheless remains strictly liable for harm a sexually harassed employee could not have avoided through reasonable care.” Id. at 1045; see also Myers v. Trendwest Resorts, Inc. (2007) 148 Cal.App.4th 1403, 1421 (“Since an employee’s failure to avail herself of available protections does not provide the employer with a complete defense, the posture of this appeal from summary judgment does not require us to address the parties’ dispute about whether Trendwest adequately advised plaintiff of availability of a grievance procedure.”)

The doctrine “does not demand or expect that employees victimized by a supervisor’s sexual harassment must always report such conduct immediately to the employer through internal grievance mechanisms. The employer may lack an adequate antiharassment policy or adequate procedures to enforce it, the employer may not have communicated the policy or procedures to the victimized employee, or the employee may reasonably fear reprisal by the harassing supervisor or other employees. Moreover, in some cases an employee’s natural feelings of embarrassment, humiliation, and shame may provide a sufficient excuse for delay in reporting acts of sexual harassment by a supervisor. The employee’s conduct is judged against a standard of reasonableness, and this standard ‘is not as high as the standard required in other areas of law.’” State Dept. of Health Serv. v. Super. Ct. (2003) 31 Cal.4th 1026, 1045.

Administrative Requirements

Under FEHA, the employee must exhaust the administrative remedy provided by the statute by filing a complaint with the Department of Fair Employment and Housing (“DFEH”) and must obtain from DFEH a notice of right to sue in order to be entitled to file a civil action in court based on violations of FEHA. Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479, 49.

Exhaustion of administrative remedies is “a jurisdictional prerequisite to resort to the courts.” Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 70.

The allegations in a judicial complaint filed pursuant to FEHA may encompass any kind of discrimination like or related to the allegations contained in the administrative charge and growing out of such allegations during the pendency of the case before the DFEH. See Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 267 (discussing and applying analogous Title VII case law). What is submitted to the DFEH must be construed liberally in favor of plaintiff and construed in light of what might be uncovered by a reasonable investigation. Id.

Statute of Limitations

FEHA actions must comply with 2 limitations periods.

First, an administrative complaint must be filed with the DFEH within 1 year of the alleged FEHA violation. Gov’t Code, §12960(d). “Under FEHA, the employee must exhaust the administrative remedy provided by the statute by filing a complaint with the Department of Fair Employment and Housing (Department) and must obtain from the Department a notice of right to sue in order to be entitled to file a civil action in court based on violations of the FEHA.... The timely filing of an administrative complaint is a prerequisite to the bringing of a civil action for damages under FEHA.” Romano v. Rockwell Int'l, Inc. (1996) 14 Cal.4th 479, 492 (citations omitted).

Second, once DFEH issues a right-to-sue letter, a lawsuit must be filed within 1 year from the issuance of that letter. Gov. Code, §12965.