Section 12120 - Harassment(a) General. The Act prohibits harassment because of membership in a protected class as a discriminatory housing practice. Harassment can take two forms: quid pro quo harassment, and hostile environment harassment. It is possible for the same conduct to be both quid pro quo harassment and hostile environment harassment. (1) Quid pro quo harassment. Quid pro quo harassment refers to an unwelcome request or demand to engage in conduct where submission to the request or demand, either explicitly or implicitly, is made a condition related to any of the following: the sale, rental, or availability of a dwelling; the terms, conditions, or privileges of the sale or rental, or the provision of services or facilities in connection therewith; the availability, terms, conditions, or privileges of a housing opportunity; or the avoidance of an adverse action. An unwelcome request or demand may constitute quid pro quo harassment even if an individual acquiesces in the unwelcome request or demand.(2) Hostile environment harassment. Hostile environment harassment refers to unwelcome conduct that is sufficiently severe or pervasive as to interfere with any of the following: the availability, sale, rental, or use or enjoyment of a dwelling; the terms, conditions, or privileges of the sale or rental; the provision or enjoyment of services or facilities in connection therewith; the availability, terms, conditions, or privileges of a housing opportunity; or constitute any kind of adverse action. Hostile environment harassment does not require a change in the terms, conditions, or privileges of the dwelling, housing opportunity, or housing-related services or facilities.(3) Whether hostile environment harassment existed or exists depends upon the totality of the circumstances. (i) Factors to be considered in determining whether hostile environment harassment existed or exist include, but are not limited to, the nature of the conduct, the context in which the incident(s) occurred, the severity, scope, frequency, duration, and location of the conduct, and the relationships of the persons involved.(ii) Neither psychological nor physical harm must be demonstrated to prove that a hostile environment existed or exists. Evidence of psychological or physical harm may, however, be relevant in determining whether a hostile environment exists or existed, as well as the amount of damages to which an aggrieved person may be entitled.(iii) Whether unwelcome conduct is sufficiently severe or pervasive as to create a hostile environment is viewed from the perspective of a reasonable person in the aggrieved person's position.(b) Title VII Affirmative Defenses Not Available. Under Title VII of the Civil Rights Act of 1964, employers have an affirmative defense to vicarious liability for hostile environment harassment by a supervisor. That defense is not available in housing cases.(c) Type of Conduct. Quid pro quo and hostile environment harassment in housing can be written, verbal, or other conduct and do not require physical contact. Quid pro quo and hostile environment harassment in housing include: (1) Verbal harassment, including epithets, derogatory comments, or slurs;(2) Physical harassment directed at an individual, including leering; winking; looking a person up and down, throwing kisses; sexual gestures; deliberate touching; pinching; patting; leaning over; intentional rubbing or brushing against another individual's body; grabbing; fondling; kissing; following a person, cornering a person, blocking a person's way, or otherwise deliberately interfering with or impeding a person's movements; attempted or actual rape or sexual assault; or sexual intercourse.(3) Visual forms of harassment, including derogatory posters, cartoons, drawings, writings, or other documents. Nothing herein shall be construed to contravene the protections provided by Civil Code sections 1940.4 and 4710;(4) Unwelcome sexual conduct, or other unwelcome conduct, linked to an individual's sex, gender, gender identity, gender expression, or sexual orientation;(5) Any coercion, intimidation, threats, or interference with a person's exercise or enjoyment of a housing opportunity;(6) Taking any adverse action against a person in a manner that constitutes quid pro quo or hostile environment harassment, such as representing to an applicant that a dwelling or housing opportunity is unavailable because of the applicant's response to a request for a sexual favor or other harassment;(7) Revealing private information to a third party about a person, without their consent, in a manner that constitutes quid pro quo or hostile environment harassment, unless such disclosure is required by federal or state law or permitted by an exception set forth in subsection 12176(e);(8) Conduct that is a discriminatory housing practice may also be quid pro quo or hostile environment harassment. For instance, a landlord repeatedly failing to make repairs to the apartments of non-English speakers while making repairs to the apartments of all other individuals could be found liable for both discrimination on the basis of primary language and hostile environment harassment.(d) Number of Incidents. A single incident of harassment because an individual is a member of a protected class may constitute a discriminatory housing practice, where the incident is sufficiently severe to constitute hostile environment harassment, or evidences quid pro quo harassment.(e) Persons Protected. The prohibition on harassment extends to conduct that is based on an individual's membership in a protected class, being perceived as a member of a protected class, or on account of having aided or encouraged any person in the exercise of the rights protected by the Act.(f) Nothing herein is designed to contravene a person's right to petition the government or exercise their rights under the First Amendment to the United States Constitution.Cal. Code Regs. Tit. 2, § 12120
1. New article 12 (sections 12120-12130) and section filed 9-16-2019; operative 1-1-2020 (Register 2019, No. 38).
2. Amendment of subsection (c)(7) and NOTE filed 11-19-2021; operative 1-1-2022 (Register 2021, No. 47). Note: Authority cited: Section 12935(a), Government Code. Reference: Sections 12920, 12921, 12926.05, 12926.1, 12927, 12948, 12955, 12955.6 and 12955.7, Government Code.
1. New article 12 (sections 12120-12130) and section filed 9-16-2019; operative 1/1/2020 (Register 2019, No. 38).
2. Amendment of subsection (c)(7) and Note filed 11-19-2021; operative 1/1/2022 (Register 2021, No. 47).