Workplace Harassment: FEHA v. Title VII

The California Fair Employment and Housing Commission (FEHC) defines “harassment” as:
– verbal harassment, such as epithets, derogatory comments or slurs (or repeated sexual comments and jokes or prying into one’s personal affairs);
– physical harassment, such as unwanted touching, rubbing against someone, assault and physical interference with movement or work; or
-visual harassment, such as derogatory cartoons, drawings or posters, lewd gestures or leering.

California Fair and Employment Housing (FEHA) generally provides a broader protection to employees in California than Title VII in the following aspects:
– it specifically prohibits “harassment” (and retaliation) as well as “discrimination”;
– it extends protection to independent contractors (persons providing services pursuant to a contract) as well as employees and job applications. Cal. Gov. Code 12940(j)(1)
– the FEHA ban on harassment extends to all employers (unlike Title VII, which applies only to employers of 15 or more employees, or the FEHA’s general ban on discrimination, which applies only to employers of five or more employees). Cal. Gov. Code 12940(j)(4)(A).
– the FEHA ban on harassment extends to nonprofit hospital and health care facilities affiliated with or owned by religious entities.
– and under the FEHA, liability for harassment extends to any employee of a covered employer.

For these reasons, among others, most employees bases sexual harassment and other harassment claims primarily on the FEHA and only secondarily on Title VII.