Harassment by Someone of the Same Sex Is Still Harassment
Key Takeaways: Yes, same-sex sexual harassment is illegal in California, and under FEHA the harasser’s orientation and lack of sexual desire generally do not matter. Government Code § 12940(j) bans harassment because of sex, gender, sexual orientation, and other protected traits, and it covers employees, applicants, interns, volunteers, and certain contractors. The ban generally applies to employers with even one employee, and coworkers who harass may be held personally liable. Employers are generally strictly liable for supervisor harassment, and may be responsible for harassment by coworkers or customers when they knew or should have known and failed to take immediate and appropriate corrective action. You generally do not need to have lost your job or pay, but before bringing a FEHA lawsuit you generally must file with the Civil Rights Department within three years. Federal law under Title VII also bans same-sex harassment, though FEHA often gives broader protection.
Yes. Same-sex sexual harassment is illegal in California, and the law does not require the harasser and the victim to be different sexes. California’s Fair Employment and Housing Act (FEHA) prohibits harassment because of sex, gender, gender identity, gender expression, and sexual orientation, among other protected traits. The harasser’s own sexual orientation generally does not matter, and neither does whether they were attracted to you. If a same-sex coworker, supervisor, or customer has targeted you with sexual comments, unwanted touching, humiliating "hazing," or slurs about your orientation, you may have legal options. Many workers stay silent because they assume this conduct "doesn’t count," or fear being outed or disbelieved. California law may still protect you.
If you think you have experienced same-sex harassment at work, you do not have to work out your options alone. MSD Lawyers represents employees across California in sensitive sexual harassment matters and treats each one with discretion. Call 213-401-0823 or schedule a confidential consultation to talk about what happened.
How Government Code 12940 Protects Workers From Same-Sex Harassment
California’s main protection against workplace harassment is found in Government Code § 12940(j). Under California Government Code § 12940(j)(1) (leginfo.legislature.ca.gov), it is unlawful for an employer, labor organization, employment agency, apprenticeship or training program, or "any other person" to harass an employee, applicant, unpaid intern, volunteer, or contract service provider because of a protected characteristic. You can read the full text in the FEHA employment provisions. Nothing in the statute limits harassment to conduct between men and women.
FEHA also defines "harassment because of sex" broadly. Under California Government Code § 12940(j)(4)(C) (leginfo.legislature.ca.gov), the term includes sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions. The statute also states directly that "sexually harassing conduct need not be motivated by sexual desire." So a man who degrades a male coworker with sexual taunts, or a woman who repeatedly gropes a female subordinate to assert dominance, may be breaking the law even if no attraction is involved.
The Legislature Closed the "Sexual Desire" Loophole
The "sexual desire" language exists because some defendants once argued that same-sex conduct was just horseplay. The Legislature added it in 2013 through SB 292, partly in response to Kelley v. Conco Companies (2011), a same-sex harassment case in which the court focused on whether there was evidence of sexual desire. The AB 2261 committee analysis reflects the Legislature’s broader effort to strengthen these protections. You generally do not have to prove the harasser was sexually interested in you, only that the conduct happened because of sex or another protected trait.
Sexual Orientation Harassment Is Separately Prohibited
Harassment aimed at your actual or perceived sexual orientation is unlawful under FEHA in its own right. Anti-gay slurs, mocking someone’s mannerisms, or spreading rumors about a coworker’s orientation can support a claim even without a sexual advance. This guide to FEHA orientation protections explains that California’s protections go further than federal law in several respects. Both sex-based and orientation-based theories may be pursued.
Federal Law Recognizes It Too
Federal law also prohibits same-sex harassment. In Oncale v. Sundowner Offshore Services (1998), the U.S. Supreme Court held that Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 (uscode.house.gov) covers harassment between people of the same sex. The EEOC enforces Title VII, as reflected in its EEOC harassment guidance. Title VII generally applies only to employers with 15 or more employees, while FEHA reaches far smaller employers and often gives broader coverage and remedies.
Who Can Be Held Responsible
Responsibility depends on who did the harassing and what the employer knew. The table below summarizes the general rules under California Government Code § 12940(j)(1) and (j)(3) (leginfo.legislature.ca.gov).
| Who Harassed You | Who May Be Liable | General Standard |
|---|---|---|
| Supervisor or agent | Employer | Employer is generally strictly liable for supervisor harassment, though damages may be reduced in some cases if the employee unreasonably failed to use available complaint procedures |
| Coworker | Employer | Employer knew or should have known and failed to take immediate, appropriate corrective action |
| Customer, client, or other nonemployee | Employer | Same knew-or-should-have-known standard, also considering how much control the employer had over the nonemployee |
| Any coworker harasser | The individual personally | May be personally liable whether or not the employer knew |
The individual harasser’s potential personal liability is especially important. Under California Government Code § 12940(j)(3) (leginfo.legislature.ca.gov), an employee who harasses a coworker may be personally liable, including a same-sex harasser. Under Government Code § 12940(k), FEHA also requires employers to take all reasonable steps to prevent harassment, which the Civil Rights Department addresses in its sample EEO policy guidance.
Even Small Employers Are Covered
The harassment ban reaches almost every California workplace. For the harassment provision only, California Government Code § 12940(j)(4)(A) (leginfo.legislature.ca.gov) defines "employer" as anyone who regularly employs one or more people or regularly receives services from one or more contractors, including the state, its political and civil subdivisions, and cities. FEHA’s discrimination provisions generally apply to employers with five or more employees, but the harassment rule covers even the smallest businesses.
There are limits. Under California Government Code § 12940(j)(4)(B) (leginfo.legislature.ca.gov), religious associations or corporations not organized for private profit generally fall outside this definition, except as provided in California Government Code § 12926.2 (leginfo.legislature.ca.gov). Protection also extends to certain contractors under California Government Code § 12940(j)(5) (leginfo.legislature.ca.gov), though whether you qualify can depend on your specific facts.
What Same-Sex Harassment Can Look Like at Work
Same-sex harassment often gets dismissed as "joking around," but the law looks at what the conduct actually is. Common examples include:
- Unwanted touching, grabbing, or simulated sexual acts presented as "initiation" or hazing
- Repeated sexual comments, jokes, or questions about your body or sex life
- Slurs or mockery based on your actual or perceived sexual orientation
- Quid pro quo pressure from a same-sex supervisor tying job benefits to sexual favors
- Showing sexual images or messages to humiliate you
You generally do not need to have lost your job or pay to bring a claim. Under California Government Code § 12940(j)(1) (leginfo.legislature.ca.gov), a victim does not have to show the loss of a tangible job benefit, such as a firing, demotion, or pay cut. A hostile work environment claim requires conduct that is severe or pervasive, though under Government Code § 12923 a single incident can be enough if serious enough. You can learn more about what counts as severe or pervasive and how courts look at the full picture.
💡 Pro Tip: Write down every incident shortly after it happens, including the date, location, exact words used, and anyone who saw it. Keep copies of texts, chats, and emails on a personal device your employer does not control.
Taking Action on Same-Sex Sexual Harassment California Claims
Before filing a FEHA lawsuit, you generally must first file a complaint with the California Civil Rights Department (CRD), formerly the DFEH. In many cases, this ends with a "right-to-sue" notice that lets you take the case to court. Under California Government Code § 12960 (leginfo.legislature.ca.gov), you generally have three years from the unlawful conduct to file with the CRD. For ongoing harassment, the continuing violation doctrine may allow earlier incidents to be included. After a right-to-sue notice is issued, you generally have one year to file a civil lawsuit. Tolling and other exceptions apply only in limited circumstances, so you should not rely on them.
Reporting internally can strengthen your case, but it is not always safe or required. Following your employer’s complaint procedure creates a record that may help show the employer knew about the harassment. FEHA also prohibits retaliation for reporting, so being reassigned, disciplined, or fired after complaining may support a separate claim. The LawHelpCA job discrimination page offers general background on these rights.
💡 Pro Tip: If your harasser is the person you would normally report to, use another channel, such as HR, a higher manager, or a written email, so there is a timestamped record of your complaint.
Frequently Asked Questions
1. Does the harasser have to be gay for same-sex harassment to be illegal?
No. FEHA states that sexually harassing conduct does not have to be motivated by sexual desire. What matters is whether the conduct happened because of sex, gender, sexual orientation, or another protected trait.
2. Can I sue the coworker who harassed me personally?
In many cases, yes. Under California Government Code § 12940(j)(3) (leginfo.legislature.ca.gov), an employee who harasses a coworker may be personally liable, whether or not the employer knew about the conduct.
3. What if my employer has only two employees?
FEHA’s harassment provision generally covers employers with one or more employees. Exceptions exist, including for certain nonprofit religious organizations.
4. Is "hazing" between male coworkers considered harassment?
It can be. Sexualized hazing, unwanted touching, or degrading sexual conduct may be unlawful if it is based on sex or another protected trait and is severe or pervasive, even when coworkers call it a tradition or a joke.
5. Do I need to have been fired to have a case?
Generally, no. FEHA does not require you to prove a lost tangible job benefit.
Your Rights Do Not Depend on the Harasser’s Gender
California law treats same-sex sexual harassment as seriously as any other form of harassment. FEHA protects employees, applicants, interns, volunteers, and certain contractors, generally reaches even very small employers, and can make individual harassers personally liable. Every case depends on its own facts, deadlines, and evidence. Acting early may help you protect your claim.
If you are dealing with this kind of harassment at work, an experienced same-sex sexual harassment California lawyer can help you understand your options. MSD Lawyers has extensive experience representing California employees in high-stakes harassment cases, handled with care and confidentiality. Call 213-401-0823 or request your free consultation today. You can also learn more about working with a same-sex sexual harassment California lawyer on our team.
Disclaimer: This content is for informational purposes only and is not legal advice. Every case is unique, and results may vary. Consult an attorney about your specific circumstances.
