Proving Discrimination and Harassment Cases in California

In a victory for workers’ rights, the California Legislature enacted California Government Code section 12923 as a statement of legislative findings and purpose regarding harassment and discrimination claims brought under the Fair Employment and Housing Act (“FEHA”). The legislation was enacted to “provide all Californians with an equal opportunity to succeed in the workplace.” The Legislature noted section 12923 “should be applied accordingly by the courts.” The legislation went into effect on January 1, 2019. Accordingly, courts have cited section 12923 in analyzing employees’ discrimination and harassment cases throughout the past year.

Employees who have suffered workplace harassment and discrimination should be aware of section 12923’s impact in five different ways:

  • Section 12923 substantially modified the severe or pervasive standard for harassment claims to require a reasonable person to find “that the harassment so altered working conditions as to make it more difficult to do the job.” Gov. Code § 12923(a).

Prior to this modification, employees were required to prove that the harassing conduct unreasonable interfered with their work performance. Now employees do not need to prove that their productivity declined to establish that the harassing conduct was severe or pervasive.

In response to section 12923, the Judicial Council of California Civil Jury Instructions (“CACI”) revised its jury instructions to define what conduct is considered “severe and pervasive” to establish a harassment claim. The revision added: “[Name of plaintiff] does not have to prove that [his/her] productivity has declined. It is sufficient to prove that a reasonable person who was subjected to the harassing conduct would find that the conduct so altered working conditions as to make it more difficult to do the job.” See CACI No. 2524.

Accordingly, employees can prevail by showing that the harassing conduct altered their working conditions so as to make it more difficult to do the job. See Hyams v. CVS Health Corporation, No. 18-cv-06271-PJH 2019 WL 6827292, at *5 (N.D. Cal., Dec. 12, 2019) (granting defendant’s motion for summary judgment because the plaintiff did “not declare or otherwise present any evidence that the statements “altered working conditions as to make it more difficult to do the job.”).

  • Section 12923 clarified that a “single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment.” Cal. Gov. Code § 12923(b).

Prior to this modification, courts consistently held that harassment is not pervasive if it is occasional, isolated, sporadic or trivial. However, in response to section 12923, CACI revised its jury instructions in defining what conduct is considered “severe and pervasive” to establish a harassment claim. The 2019 revision added: “[A single incident can be sufficiently severe or pervasive to constitute harassment.]” See CACI No. 2524.

Since 2019, courts have applied section 12923(b) accordingly in denying pre-trial dispositive motions. See Milner v. TBWA Worldwide, Inc., No. CV 19-08174 DSF (AFMx), 2019 WL 5617757, at *4 (C.D. Cal., Oct. 30, 2019) (“Under California law, even one instance of harassment can be sufficient” to establish a FEHA age-based harassment claim); seealso Doe v. Wells Fargo Bank, N.A., No. CV 19-5586-GW-PLAx, 2019 WL 3942963, at *6 (C.D. Cal. Aug. 19, 2019) (citing Cal. Gov. Code § 12923(b) in explaining “what Defendants fail to recognize is that even one instance of harassment can be sufficient” for a viable FEHA harassment claim against an individual defendant.).

  • Section 12923 directs courts to consider the totality of the circumstances in determining a hostile work environment and specifically rejects the “stray remarks” doctrine. Cal. Gov. Code § 12923(c).

The Legislature explained, “a discriminatory remark, even if not made directly in the context of an employment decision or uttered by a nondecisionmaker, may be relevant, circumstantial evidence of discrimination.” See Concialdi v. Jacobs Engineering Group, No. CV 17-1068 FMO (GJSx), 2019 WL 3084282, at *10  (C.D. Cal. Apr. 29, 2019) (denying Defendant’s motion for summary judgment for age-based discrimination even if Plaintiff’s cause of action was based on stray remarks not made in the direct context of the decisional process.”).

  • Section 12923 makes it clear that the same legal standard should apply to all sexual harassment cases regardless of the type of workplace. Cal. Gov. Code § 12923(d).

The Legislature elaborated: “It is irrelevant that a particular occupation may have been characterized by a greater frequency of sexually related commentary or conduct in the past.” Id.

  • Section 12923 explained that: “Harassment cases are rarely appropriate on summary judgment” and agreed that “hostile working environment cases involve issues ‘not determinable on paper.’” Cal. Gov. Code § 12923(e).

This provision is especially important because employers often file dispositive motions in harassment cases. See Loi Ngo v. United Airlines, Inc., No. 19-cv-04277-JCS, 2019 WL 6050832, at *6 (N.D. Cal. Nov. 15, 2019) (citing section 12923(e) in granting plaintiff’s motion for remand finding plaintiff did not fraudulently join an individual defendant.).

Employees should keep these powerful provisions in mind when pursuing discrimination and harassment claims under FEHA.

If you have been subject to harassment or discrimination in the workplace, please feel free to call the experienced workers rights attorneys at Hunter Pyle Law, and to make use of our free and confidential initial intake process.  We can be reached at (510) 444-4400, or at