Learn About Humor in the Workplace and the Law

Positive humor can contribute to a sense of connection and may support a healthier workplace culture. It can also reduce stress and improve employee job satisfaction and productivity. When used appropriately, humor can strengthen teamwork and leadership, benefiting individuals and the organization. However, humor becomes harmful when it targets a person’s identity and crosses the line into harassment.

California law protects employees from such behavior and focuses not on the speaker’s intent but on the impact of their words. Discriminatory or offensive jokes, especially those targeting sex, race, or other protected traits, can create a hostile work environment and lead to legal consequences. At Empower Sexual Harassment Attorneys, our lawyers are readily available to assist you in learning your rights and acting accordingly when humor in the workplace turns into harassment.

At What Point is a Joke Considered Illegal Harassment?

Understanding how California law defines harassment helps you maintain a respectful workplace and protect yourself. The Civil Rights Department (CRD) investigates and helps enforce the Fair Employment and Housing Act (FEHA), which outlines employee protections.

The Legal Meaning of Harassment

Harassment is considered a form of employment discrimination under FEHA. It consists of undesirable actions based on such characteristics as:

• Race
• Color
• Religion
• Sex (including pregnancy, sexual orientation, and gender identity)
• Marital status
• National origin
• Disability
• Medical condition
• Military status
• Age (40+)

Your conduct, including jokes, can be considered illegal when it satisfies one of the following two conditions:

• Quid Pro Quo: You must tolerate the behavior to keep your job or receive work benefits.
• Hostile Work Environment: The behavior is so severe or happens so often that a reasonable person would consider it intimidating, hostile, or abusive.

What “Severe” or “Pervasive” Means

These terms help decide if the conduct is bad enough to warrant legal action:

• Severe: Even a single, very serious action (like using a highly offensive racial slur) may be enough to warrant legal action.
• Pervasive: A pattern of less serious, but repetitive, events such as offensive jokes, ridicule, or insults may also be considered, as long as they interfere with the workplace environment in the long term.

Although isolated remarks may not meet the legal threshold, repeated unwanted conduct can contribute to a hostile work environment and affect an employee’s performance.

The Standard of a Reasonable Person

Harassment is determined by how a reasonable person would perceive the behavior, not by the harasser’s intent. It is not a legal defense to say it was just a joke.

• It is not Just About the Target: A victim does not have to be the target of the joke to be a victim.
• No Need to Complain: The victims do not need to complain verbally to have the action considered unwelcome. Some jokes, particularly those involving protected characteristics, may be considered unlawful when contributing to a hostile work environment, regardless of the speaker’s intent.

Understanding this framework empowers employees to recognize their rights and take action when necessary.

California Laws that Protect Your Rights

As an employee in California, you are protected by some of the strongest anti-discrimination and anti-harassment laws in the country. The main sources of these protections are the Fair Employment and Housing Act (FEHA), which in many cases has a wider coverage than federal laws. Being aware of your rights under these laws is the key to recognizing and addressing unlawful conduct in the workplace.

The Fair Employment and Housing Act (FEHA) of California

FEHA is among the most comprehensive civil rights laws protecting employees in California. It prohibits employers from discriminating against or harassing employees and job applicants on a broad basis of protected characteristics.

FEHA provides broader coverage than many federal laws by including additional protected characteristics.

Some of the protected characteristics include the following:

• Age (40+)
• Ancestry
• Color
• Disability (mental and physical)
• Gender
• Gender identity
• Gender expression
• Genetic information
• Marital status
• Medical condition
• Military or veteran status
• National origin
• Race (including traits such as hair texture or protective hairstyles)
• Religion
• Sex (including pregnancy, childbirth, and breastfeeding)
• Sexual orientation

Another distinction of FEHA is broader employer coverage. For harassment claims, FEHA applies to all employers with at least one employee, including paid or unpaid interns, volunteers, and independent contractors.

In the case of discrimination claims, it covers employers who have five or more employees, which is a significantly lower number in comparison with federal laws that usually demand 15 or more employees.

FEHA also prohibits two main types of illegal harassment: quid pro quo harassment and hostile work environment harassment.

• Quid pro quo harassment occurs when job benefits are offered in exchange for tolerating unwelcome behavior.
• A hostile work environment occurs when the behavior is so extreme or widespread that it creates an abusive or threatening atmosphere.

Anti-Harassment Federal Laws

Important protections are also available in federal law, such as Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), and the Americans with Disabilities Act (ADA). These legislations forbid harassment on the basis of such characteristics as race, religion, sex, national origin, age (40+), and disability. Nevertheless, FEHA tends to offer more or equal protection, so it is the main defense of California employees.

Types of Harassment in a Workplace

Understanding how harassment occurs in real workplace situations is key to identifying unlawful conduct. The most important question is, “Does this joke or comment attack someone based on a protected characteristic like race, sex, age, religion, or disability?” In that case, it can become unlawful harassment under California law.

Sex-Based and Sexual Harassment

Sexual harassment does not only entail physical advances. It encompasses:

• Verbal
• Visual
• Physical sexual behavior
• Sexually offensive remarks
• Gender identity
• Gender expression
• Sexual orientation

Examples of banned conduct are:

• Sexual innuendo jokes, profane jokes, or explicit jokes
• Remarks that reinforce sexist stereotypes, such as saying, “Go make me a sandwich.”
• Mocking a person in regard to their sexual orientation or gender identity
• Sending sexually explicit mails or memes

National Origin and Race-Based Harassment

It is based on the race, ethnicity, ancestry, or national origin of a person and may be either explicit or implicit. California law also covers characteristics related to race, such as hair texture and protective hairstyles.

Examples include:

• Racial jokes or slurs, even when intended as humor, may still be considered harassment under California law.
• Making fun of an accent, name, or traditional garments
• Assigning tasks based on racial stereotypes, such as assuming physical labor roles based on race, may constitute discriminatory harassment.
• Harassment can also be institutional.

Age Harassment

The ADEA and FEHA acts cover employees who are 40 years and above. In this case, harassment frequently takes the form of negative stereotypes of aging and ability.

Examples include:

• Such terms as “old-timer” or “over the hill”
• Jokes implying older employees are technologically inept or lacking in energy
• Remarks that someone is now obsolete or that their ideas no longer count

Harassment based on Disability

Harassment because of a physical or mental disability is unlawful.

Examples include:

• Mimicking a stutter or an impairment of a person
• Mocking necessary accommodations, such as ergonomic chairs
• Discriminating employees because they are related to a disabled person

Religion-Based Harassment

California law safeguards any religious and non-religious beliefs.

Examples include:

• Making fun of the religion or the religious dress code of someone
• Uttering abusive words on religious practices
• Imposing religious beliefs on others or making offensive remarks about their practices

When facing harassment, it is essential to act decisively. Your first steps can shape the outcome of your claim.

Initial Response

If you feel safe, consider confronting the perpetrator. Gently but clearly state that their behavior is unwelcome—for example, ‘I don’t appreciate those jokes, and I’d like you to stop. This can stop the behavior immediately and make it clear that you did not consent to it.  But you do not have to legally face the harasser, particularly when the actions are extreme or you do not feel safe.

Internal Remedies in the Organization

The best step you can take is to use the internal reporting system of your company.

Find Out About Your Company’s Anti-Harassment Policy

Locate and read the anti-harassment policy of your employer, which can be found in the employee handbook. It provides a description of what harassment is, the reporting procedure, and the investigation procedure.

Document Everything

Documentation is one of the most important tools for protecting your rights. Maintain a personal record with:

• Time, date, and location
• Precise words or deeds (give direct quotes where possible)
• Name of the harasser and witnesses
• Your reaction and emotional impression

Save any physical or electronic records, such as emails, texts, voicemails, or social media posts, as well. Make screenshots because the online material may be deleted.

Report to a Supervisor, Manager, or HR

Report the behavior to a supervisor, manager, or HR following the policy of your company. It is preferable to do this in writing (for example, by email) to establish a dated record. Be factual and professional in your tone, and consult your documentation.

Problems You Can Face While Reporting and Fear of Retaliation

Many people are afraid to report harassment or discrimination because they worry about retaliation, such as demotion, termination, or mistreatment.  This fear is very common.

However, California law (FEHA) protects you if you speak up. It is illegal for your employer to retaliate against you for:

• Reporting harassment or discrimination
• Filing a complaint with CRD or EEOC
• Doing research related to discrimination
• Refusing to take part in discrimination

In case of retaliation, that is another legal infringement. Document instances of retaliation in the same way you recorded the harassment incidents.

Choosing not to report harassment may weaken your ability to take legal action later. Reporting gives your employer a chance to act and holds them accountable. These measures will safeguard your health and your rights.

Prevention, Investigation, and Liability of the Employer in California

In California, employers have the primary duty to prevent and deal with workplace harassment. FEHA mandates employers to go out of their way to stop harassment and not to react after it has happened. These responsibilities are important in the accountability of employers.

Employer Responsibilities under the Law’

Employers are expected to foster a workplace culture that actively discourages harassment and promptly addresses any reported incidents. This is known as the employer’s proactive duty to prevent and immediately address harassment.

The most important requirements are:

• Written Anti-Harassment Policy: Employers should have a comprehensive written policy that forbids harassment, discrimination, and retaliation. The policy should enumerate all the categories that are covered by FEHA, bar harassment by coworkers, supervisors, and third parties, and have clear complaint procedures and several reporting avenues so that the employees are not compelled to report misconduct to the harasser.
• Mandatory Harassment Prevention Training: Employers who have five or more workers are required to offer interactive harassment prevention training every two years. The supervisors should be trained for at least two hours, and other employees for one hour. New entrants have to be trained in a period of six months. The training should include such issues as gender-based harassment, abusive behavior, and sexual orientation, and protection based on sexual orientation and gender identity.
• Give Information and Post Notices: Employers must provide each employee with a sexual harassment information sheet issued by the Civil Rights Department (CRD) at the time of hire and post CRD-required notices in the workplace.

Liability of Employers on Harassment in the Workplace

In case of harassment, employers have a legal responsibility:

• Supervisor Harassment: Employers are strictly liable, that is, automatically responsible when a supervisor harasses.
• Co-worker or Non-Employee Harassment: Where the harasser is a co-worker, customer, or contractor, an employer can only be held liable where the employer knew or should have known about the harassment and did not take action. This is why reporting is essential, as it warns the employer and makes them legally obliged to act.

Timely and Just Investigations

After the harassment is reported, the employer should investigate it promptly, thoroughly, and impartially. This includes:

• Interviewing the complainant, the  accused, and witnesses
• Reading evidence such as messages or files
• Keeping as much confidentiality as possible
• Making a reasonable decision and taking proper remedial action, including training, counseling, or firing

Failure to investigate or take appropriate action is a violation of FEHA. Once harassment is reported, a legally mandated process begins, and when it is not properly handled, it can lead to further liability on the employer.

How to File a Harassment Lawsuit in California

In case internal complaints of harassment do not serve justice or you are retaliated against, California law provides a formal process to pursue legal action through the Civil Rights Department (CRD). You begin this process by filing a complaint with the CRD, which enforces FEHA. You must follow strict procedures and meet legal deadlines to proceed with your claim.

Submission of Administrative Complaint to the CRD

To sue under FEHA, your claim must be based on workplace harassment, and your administrative remedies must be exhausted by filing a complaint with the CRD.

Critical Deadlines

California has strict deadlines to be observed:

In most cases, you have three years from the last incident of harassment to file a complaint with the CRD, under current California law.

That is more accommodating than the time limits to file with the federal EEOC, which may be shorter, but failing to file within the three-year limit may result in losing your right to pursue the claim.

The CRD Process

After you file your complaint (which is referred to as an “intake form”), the CRD will do the following:

• Intake Interview: A CRD representative will call you to obtain additional information.
• Mediation or Investigation: If mediation fails, the CRD will conduct an impartial investigation by reviewing relevant communications, such as emails and messages, and interviewing key witnesses.
• Result: Following the investigation, the CRD can discover some evidence of discrimination and take up your case, or they might close it.

How to Obtain a “Notice of Right to Sue”

If you want to sue your employer in court, you need to obtain a Notice of Right to Sue.

You may obtain one in two ways:

•  Request it Right Away: If you want to skip the CRD investigation and go straight to court (usually best if you already have a lawyer).
• Wait for the CRD to Conduct an Investigation: You should ask the CRD to look into your complaint; they will give you the notice when the case ends or after one year, whichever comes first.

Civil Lawsuit Filing

Once you receive the Right-to-Sue notice from the CRD, you have one year from the date of that notice to file your lawsuit in California state court. Missing this deadline can result in dismissal, even if your claim is valid. You should be ready to take action immediately after getting this notice.

Compensation in a Workplace Harassment Lawsuit

In the event you prevail in a harassment claim under the Fair Employment and Housing Act (FEHA) of California, you might be entitled to a variety of monetary awards, or damages. These are meant to compensate you for the damage you have suffered and, in some instances, to punish the employer for gross misconduct. Understanding potential compensation helps set realistic expectations for your claim.

The FEHA Types of Damages

Damages are mainly categorized into three, namely economic, non-economic, and punitive.

1. Economic Damages

These are also known as compensatory or special damages, and they compensate you for the financial losses you incurred as a result of the harassment. They can comprise the following:

• Back Pay: The wages, bonuses, and benefits lost since the date of termination, demotion, or resignation until the court decision.
• Front Pay: Payments to cover future loss of earnings in case you are unable to resume your former job.
• Lost Benefits: The amount of lost benefits, such as health insurance or retirement contributions.
• Medical Costs: Coverage of the cost of therapy, drugs, or other mental health care that may have been incurred as a result of the harassment.

2. Damages of Emotional Distress

This type, which is also called general or non-economic damages, covers the psychological effects of harassment. It is usually a significant part of a California harassment claim. You can be compensated for:

• Emotional suffering and mental pain
• Mental health issues like anxiety, depression, etc.
• Deprivation of the pleasure of life
• Shame and disgrace
• The damage to your personal and professional reputation

3. Punitive Damages

Punitive damages are not awarded to compensate you but are awarded to punish the employer in cases of gross misconduct and to discourage such conduct in the future. To recover these damages, you need to prove by clear and convincing evidence that the employer was acting with oppression, fraud, or malice and that a high-level manager was aware of or condoned the misconduct

In contrast to federal law, California has no limit on compensatory or punitive damages under FEHA, and awards in serious cases can be quite large.

Compensation Factors That Affect Amounts

The worth of a harassment case is determined by a few factors:

• The intensity and the frequency of the harassment
• Emotional and financial effects on the Victim
• The evidence, strength, documentation, and witness testimony
• The conduct of the employer, particularly when they disregarded complaints or attempted to conceal the conduct

All these affect the amount of compensation you are likely to obtain in a settlement or a court decision.

Importance of Seeking Legal Counsel

A workplace harassment claim is confusing, stressful, and emotionally draining to handle. The legal process is complex, deadlines are strict, and facing your employer’s legal team without support can be overwhelming. Having a qualified attorney is often critical to achieving a fair and successful outcome.

Why Employ an Attorney for Workplace Harassment?

An experienced California workplace harassment lawyer will be your representative and mentor in the legal process and will provide several important benefits:

• Professional Legal Analysis: A lawyer will tell you what your rights are under the California FEHA and other statutes, whether your experience amounts to harassment, and the strengths and weaknesses of your claim.
• Strategic Evidence Collection: They will assist you in writing down the incidents properly, keeping important communications, and finding witnesses. This strengthens the legal credibility of your evidence.
• Making Your Way through the CRD and Court Systems: Attorneys handle all the paperwork, file complaints with the CRD, and make sure that all deadlines are met so that your case is not dismissed because of technicalities.
• Experienced Negotiation and Litigation: Your attorney will negotiate on your behalf and will litigate to ensure that you receive the highest amount of compensation. Most of the cases are settled outside the court, but in case it is necessary, your lawyer will take your case to trial.
• Retaliation Protection: With legal representation, your attorney can act quickly to assert your rights if you experience retaliation.
• Emotional Support and Objectivity: An empathetic lawyer provides emotional support and objective advice in a situation that may be very tough.

Find an Experienced Workplace Harassment Lawyer Near Me

You are entitled to a harassment-free, discrimination-free workplace. Workplace jokes or behavior that target protected characteristics and contribute to a hostile environment may violate California law on the basis of race, sex, or age, which are covered by the FEHA of California. In case you have been harassed in the workplace, you should write down the instances, report the cases, and be aware that the law is on your side. You do not have to work through this process alone; professional legal assistance is available. To obtain professional legal advice in San Diego, contact Empower Sexual Harassment Attorneys at 619-604-3027 and schedule a confidential meeting to discuss your next steps.