What constitutes harassment based on disability under Fair Employment and Housing Act (FEHA) and what are employers’ obligations? 

Fair Employment and Housing Act (FEHA) establishes comprehensive prohibitions against disability-based harassment that create both direct liability for harassment and affirmative obligations for employers to prevent and remedy such conduct. Government Code Section 12940(j)(1) makes it unlawful for employers or any other person to harass employees or applicants because of their medical condition, physical disability, or mental disability, recognizing harassment as a distinct form of discrimination requiring specific legal remedies.  

Definition and Standards for Harassment: Unlike discrimination claims that typically require tangible job consequences, harassment claims under Fair Employment and Housing Act do not require showing loss of tangible job benefits to be actionable. However, harassment must meet specific severity and pervasiveness standards to create legal liability. 

To be actionable, harassment based on disability or medical condition must be “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create a hostile working environment.” The law requires that harassment “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.”  

This standard ensures that only serious workplace misconduct gives rise to legal claims while filtering out minor workplace conflicts or occasional inappropriate comments. The focus is on conduct that fundamentally changes the work environment for the disabled employee, making it hostile or abusive. 

Employer Prevention Obligations: FEHA imposes an affirmative duty on employers beyond merely refraining from harassment. Government Code Section 12940(j)(1) requires employers to take “all reasonable steps to prevent harassment from occurring.” This proactive obligation means employers must implement policies, training, and procedures designed to prevent disability-based harassment before it occurs. 

The “all reasonable steps” standard is demanding and requires employers to take comprehensive measures that might include developing clear anti-harassment policies, providing regular training to employees and supervisors, establishing multiple reporting mechanisms, ensuring prompt investigation procedures, and taking appropriate corrective action when harassment is discovered. 

Vicarious Liability Standards: FEHA establishes different liability standards depending on the harasser’s status within the organization. Employers face strict liability for harassment by the aggrieved employee’s direct supervisor or any other manager. This strict liability standard means that employers cannot escape responsibility for supervisory harassment even if they were unaware of the conduct or had policies prohibiting it. 

For harassment by coworkers or other non-supervisory employees, employers are liable only if they (or their agents or supervisors) knew or should have known of the conduct and failed to take immediate and appropriate corrective action. This knowledge-based standard recognizes that employers cannot monitor all employee interactions but must respond appropriately when harassment comes to their attention. 

A supervisor is considered the employer’s agent for purposes of harassment liability, meaning knowledge possessed by supervisors is imputed to the employer. This agency relationship ensures that employers cannot avoid liability by claiming ignorance when their management representatives were aware of harassment. 

Types of Disability-Based Harassment: Harassment based on disability can take various forms, from verbal comments about an employee’s condition to physical conduct that targets someone because of their disability. Examples from FEHA cases include making negative comments and demeaning facial expressions about an employee’s body odor caused by medication, and subjecting employees to hostility and demeaning treatment related to their medical conditions.  

The harassment must be based on the individual’s disability, medical condition, or perceived disability rather than on other factors. This causation requirement ensures that FEHA harassment protections are properly targeted at disability-related misconduct rather than general workplace conflicts. 

Harassment vs. Other Conduct: FEHA clarifies that harassment claims “must be based on interpersonal conduct that is avoidable and unnecessary to job performance.” This distinction helps separate legitimate job-related criticism or supervision from harassment. Supervisors’ “relatively minor conduct,” while potentially angering or upsetting, does not constitute harassment if it doesn’t materially affect employment terms, conditions, or privileges.  

For example, a supervisor’s criticism of work performance, ordering wellness checks, expressing suspicion about policy violations, or making work assignments, even if these actions create stress for a disabled employee, may not constitute harassment if they represent legitimate supervisory conduct.  

Individual Harasser Liability: Government Code Section 12940(j)(3) provides that supervisors or coworkers may be held personally liable for harassing another employee regardless of whether the employer was aware of their conduct. This personal liability provision ensures that individual harassers face direct consequences for their misconduct and cannot hide behind employer liability limitations. 

Personal liability for harassment creates important incentives for individual employees to refrain from disability-based harassment and provides additional recovery options for harassment victims when employers may have limited resources or other liability limitations. 

Relationship to Discrimination Claims: Harassment claims under FEHA are distinct from but related to discrimination claims. The same conduct that supports a harassment claim may also support discrimination claims, particularly where supervisors engage in harassment that also demonstrates discriminatory intent regarding employment decisions.  

In some cases, harassment may be part of a pattern of discriminatory treatment that affects tangible employment terms, creating multiple legal theories for recovery. However, harassment stands alone as a cognizable claim even without accompanying discrimination in traditional employment benefits. 

Remedial Framework: When harassment is established, FEHA’s remedial framework is designed to eliminate the harassment and prevent its recurrence while compensating victims for their injuries. The law’s emphasis on prevention reflects recognition that harassment creates workplace environments that undermine the fundamental goals of equal employment opportunity. 

Employers who fail to take reasonable preventive measures or who inadequately respond to known harassment face potential liability for both the harassment itself and their failure to meet their affirmative obligations under the Act. This dual liability structure ensures that employers have strong incentives to maintain harassment-free workplaces. 

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