Under California’s Fair Employment and Housing Act (the FEHA), an “employer” need only employ one or more persons or regularly receive the services of one or more persons under a contract to be subject to a sexual harassment lawsuit. This is lower than for gender discrimination cases in which a person or company must have 5 or more employees to be a defendant in a California lawsuit.
The factors that courts look at to determine if a person or company is an employer are:
- Payment of salary or other benefits
- Ownership of the equipment used by the employee
- The location of the relevant work
- Responsibility for training the employee
- Authority to promote or discharge the employee
- Power to determine the schedule, assignment and amount of the employee's compensation.
Under Title VII of the Civil Rights Act of 1964 – the federal anti-harassment law, the term “employer” encompasses any party who significantly affects access of any individual to employment opportunities, regardless of whether that party may technically be described as an employer. An person or company’s power to hire and fire and control the manner and means by which workers accomplish their tasks is evidence of an employment relationship. Under federal law, the employer must have at least 15 employees to be subject to a lawsuit. Two or more companies may be considered “joint employers” if they both exercise control over the employee. If either can end the employment relationship (fire the employee), set the work rules, give assignments, supervise, discipline, control employee records, payroll, insurance and taxes, it may be a joint employer. A parent corporation and its subsidiary that both control an employee can be viewed as an integrated enterprise or a single employer. A company that purchases the assets of another company - a successor - can also be held liable as an employer.
This FEHA definition of “employer” also includes the State of California, or its local governments. The FEHA excludes religious associations or corporations not organized for private profit. These limitations on the phrase “employer” do not prevent the victim of harassment from suing the harasser directly regardless of the size of her employer or whether it is a religious organization or nonprofit.
Not only is sexual harassment illegal. The law also prohibits:
- Racial harassment
- Religious harassment
- Age-based harassment
- Harassment based on disability
- Harassment based on ethnicity or national origin