Introduction
Understanding the scope and implications of prohibited harassment can be a daunting task for many employers. Of equal import is the duty to remain informed of legal changes, alongside the ongoing duty to prevent prohibited harassment in the workplace. Below, we detail the 2026 legal landscape of prohibited harassment, the employer’s role in preventing it, and vital steps to take should harassment occur.
Prohibited Harassment Overview
California law extends the protections against prohibited harassment to each individual involved in the operations of the company—including third parties. While prohibited harassment includes sexual harassment, it also encompasses harassment based on any protected category, including but not limited to ancestry, disability, marital status, national origin, race, or gender identity.
The law distinguished between two types of harassment: quid pro quo harassment and hostile work environment. “Quid Pro Quo” harassment involves someone with authority over your job, conditioning a benefit on your submission to unwelcome advances, or threatening a consequence for refusing. Hostile work environment means any conduct that is severe or pervasive enough to make your workplace intimidating, hostile, or abusive. In Bailey v. San Francisco Dist. Attorney’s Office, the court held that a single use of an offensive racial slur was enough to constitute severe or pervasive conduct.1
Employers are held liable for their employee’s harassing behavior when: (1) the employer knew, or should have known about the conduct and failed to take immediate corrective action, or (2) when a supervisor or manager is responsible for the offensive conduct. When the superior engages in the conduct, the employer is strictly liable for the harassment by the coworker or non-employee.
In addition to the employer, the individual who harassed the individual can also be held personally liable for damages, regardless of whether the employer knew about the behavior.2 As explained in Bailey, the standard for employer liability is negligence—which does not require intent.3 California law makes it unlawful for any employer to discharge, demote, or otherwise retaliate against someone for opposing harassment, filing a complaint, testifying in proceedings, or assisting in an investigation.4 The legal test is whether the action would discourage a reasonable employee from reporting harassment in the first place. If an employee experiences retaliation after reporting, that is a separate legal claim with its own remedies.
Available remedies and damages for a person experiencing harassment include back pay, front pay, emotional distress damages, and punitive damages.
The Fair Employment and Housing Act (FEHA) also requires employers to have an affirmative, mandatory duty to take all reasonable steps necessary to prevent discrimination, harassment, or retaliation in the workplace.5 This duty is not passive, it is proactive, systematic, and ongoing. In Northrop Grumman Corp. v. Workers’ Comp. Appeals Bd., the court held that the employer’s duty to prevent harassment and discrimination is affirmative and mandatory, meaning liability can follow even if the employer did not personally commit misconduct.6 Reasonable steps, specifically requires the employer to be proactive and systematic, not just reactive, and further requires specifically tailored, ongoing, and consistently enforced workplace policies to prohibit and redress prohibited conduct.
Duty to Investigate
When an employer receives an internal harassment complaint, FEHA mandates a duty to investigate. This includes comprehensively interviewing employees involved, clearly articulating the allegations to the accused party so they can respond, interviewing any witnesses with potentially relevant knowledge, utilizing open-ended questions, reviewing potentially relevant documents or communications, and conducting a thorough, objective analysis of relevant evidence to make reasonable credibility assessments. Credibility factors when interviewing witnesses include inherent plausibility, motive to lie, corroboration, the extent a witness was able to perceive, recollect, or communicate about the matter, the history of honesty/dishonesty, habit or consistency, inconsistent statements, manner of testimony, and demeanor. The employer should take corrective action when the investigator finds that harassing behavior has occurred, and address those findings by communicating the resolution and future expectations with all involved parties.
Upon finding that harassing behavior has occurred, an employer must engage in corrective action which includes discipline, termination, resetting expectations, training, or other actions to eliminate harassing behavior. The burden of proof to find that harassment has occurred is preponderance of evidence, meaning it is more likely than not that there is a finding that the alleged conduct has occurred.7
Sexual Harassment Training
FEHA also requires ongoing training to prevent harassment. An employer with five or more employees shall provide at least two hours of classroom or other effective interactive training and education regarding sexual harassment.8 This training must occur once every two years.9 New nonsupervisory hires shall be provided training within six months of hire, and new supervisory employees shall be provided training within six months of the assumption of the supervisory position.10 Seasonal or temporary employees (hired to work less than six months) must also be provided with training within thirty calendar days or 100 hours worked.11 If the employee is a temp, training shall be provided by the temporary services employer.12
Sexual harassment training should be live and interactive. Employers who have completed their training should save electronically and print a certificate of completion.
Workplace Documentation
Employers should engage in clear and consistent workplace documentation of both Anti-Harassment policies, regular trainings, and complaint practices—including any investigations that have occurred. Documentation includes records of employment activities, employment history, incident reports, attendance records, leave records, incident reports, time and pay records, and performance evaluations.
When documenting investigations, the employer should include the initial complaint, any interviews conducted, statements from parties involved, relevant evidence, and any reports made because of the investigation. Properly recorded documentation protects the organization by demonstrating employer compliance with the law, and aides in preventing or defending potential legal claims that may arise.
Sexual Harassment and the EFAA
The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act is one of the most significant statutory changes to arbitration law. The EFAA limits the enforceability of pre-dispute arbitration agreements in cases involved sexual assault or sexual harassment, including sexual orientation claims.13 This overrides delegation clauses, and changes who decides arbitrability. In Decloedt v. Radnet Management, Inc, a California court has held that sexual orientation harassment constitutes “sexual harassment” under FEHA.14 Consequently, claims for sexual orientation harassment are exempt from arbitration under the EFAA. Doe v. Second Street Corp and Liu v. Miniso Depot CA, Inc. are two California Appellate cases finding that the plaintiff cannot be compelled to arbitration if at least one of the claims asserted in the case is a sexual assault or sexual harassment claim covered by the EFAA.15 It is important to ensure that every employee handbook includes an anti-harassment, anti-retaliation, and anti-discrimination policies.
Conclusion
Prohibited harassment can be a very tricky area of law for employers to navigate, but the attorneys at Palmer Kazanjian Wohl Hodson, LLP are ready to advise you on how to prevent harassment in the workplace and develop policies if harassment does occur. We are glad to offer guidance to clients who want to improve and maintain compliance within the workplace.
1 Bailey v. San Francisco Dist. Attorney's Office. (2024) 16 Cal. 5th 611, 552 P.3d 433.
2 Cal. Gov. Code § 12940(j)(3) (West).
3 Bailey v. San Francisco Dist. Attorney's Office. (2024) 16 Cal. 5th 611, 552 P.3d 433.
4 Cal. Lab. Code § 98.6 (West).
5 Cal. Gov't Code § 12940(k) (West).
6 Northrop Grumman Corp. v. Workers' Comp. Appeals Bd., 103 Cal. App. 4th 1021, 127 Cal. Rptr. 2d 285 (2002).
7 Nazir v. United Airlines, Inc., 178 Cal. App. 4th 243, 100 Cal. Rptr. 3d 296 (2009).
8 Cal. Gov't Code § 12950.1 (West).
9 Cal. Gov't Code § 12950.1 (West).
10 Cal. Gov't Code § 12950.1 (West).
11 Cal. Gov't Code § 12950.1 (West).
12 Cal. Gov't Code § 12950.1 (West).
13 U.S.C. §§ 401-402.
14 Decloedt v. Radnet Mgmt., Inc., No. B343963, 2026 WL 1959641 (Cal. Ct. App. June 26, 2026).
15 Doe v. Second St. Corp., 105 Cal. App. 5th 552, 326 Cal. Rptr. 3d 42 (2024); Liu v. Miniso Depot CA, Inc., 105 Cal. App. 5th 791, 326 Cal. Rptr. 3d 286 (2024), review denied (Dec. 31, 2024), cert denied 146 S. Ct. 107, 223 L. Ed. 2d 15 (2025).