Appellate court finds harassment need only alter working conditions as to ‘make it more difficult to do the job’
Most California employers understand that under the Fair Employment and Housing Act (FEHA) they are required to promptly investigate harassment complaints and take immediate steps to protect employees. However, there is no definitive guide for determining what conduct constitutes workplace harassment.
A recent California appellate court decision acknowledges that the standard for workplace harassment has evolved in recent years, adopting a “middle path between making actionable any conduct that is merely offensive and requiring the conduct to cause a tangible psychological injury.” In Carranza v. City of Los Angeles, (2025) 111 Cal. App. 5th 388, 388, the court upheld a jury determination that a sexual harassment claim was supported by the distribution of a sexually explicit photo among co-workers. Although the photo was not truly of the plaintiff and was never shown to her directly, the perception among others that it depicted her created a hostile and offensive work environment that unreasonably interfered with her job performance.
Facts of the Case
The photo in question showed a close-up of a woman’s bare breasts. Although the woman was not Captain Carranza, she had similar facial features, and some who saw the photo believed—or suggested—it was her. Carranza learned of the photo from her union attorney while on vacation and testified that she felt “very hurt” and “betrayed, devalued, [and] objectified.”
Carranza immediately lodged a complaint with the City’s independent agency that fields harassment complaints from employees. The LAPD promptly opened an investigation and began interviewing appropriate individuals.
During the investigation, Carranza also asked her superiors to inform employees that the photo was not of her and issue a department-wide warning that distributing the image constituted misconduct. The department declined. The police chief later testified that leadership had discussed the pros and cons of such a message, but ultimately decided against it, fearing it would cause further embarrassment, prompt curiosity among LAPD’s 13,000 employees, and potentially disrupt the ongoing investigation.
After completing its internal investigation, the LAPD substantiated the allegation that an unknown employee, either on or off duty, circulated a nude photo of a woman falsely identified as Captain Carranza. Although investigators attempted to retrieve metadata from the image, they were unable to do so without access to the original device. The investigation concluded that sharing the image violated department policies prohibiting sexual harassment, discriminatory conduct, and the distribution of gender-based derogatory material. While the conduct was classified as “serious misconduct,” no disciplinary action was taken because the individual responsible could not be identified.
The Lawsuit
Although Captain Carranza was not directly subjected to the harassing behavior—and only learned of the photo through her attorney—she filed a sexual harassment claim against the City. The City argued that the conduct did not rise to the level of being ‘severe or pervasive,’ noting that Carranza remained in her role as captain and experienced no measurable decline in productivity. Nevertheless, the jury found in Carranza’s favor, concluding that she had been subjected to severe or pervasive harassment and that the department failed to take appropriate corrective action despite being aware of the situation The jury awarded Carranza $1.5 million in past noneconomic damages and $2.5 million in future noneconomic damages, for a total award of $4 million.
The trial court entered judgment against the City, and the City timely appealed, arguing in relevant part that there was insufficient evidence of severe or pervasive harassment because Carranza had not “endured sexually harassing interpersonal … interactions” and they had taken appropriate action at the time of learning of the photos by launching a timely investigation.
A New Standard Applied – Do Employees Need Only Show It Is More Difficult to Do the Job?
To prevail on a hostile work environment claim under FEHA, a plaintiff must show “she was subjected to sexual advances, conduct, or comments that were (1) unwelcome; (2) because of sex; and (3) sufficiently severe or pervasive to alter the conditions of her employment and create an abusive work environment.” [citation.] FEHA “harassment claims focus on ‘situations in which the social environment of the workplace becomes intolerable because the harassment (whether verbal, physical, or visual) communicates an offensive message to the harassed employee.’”
The City relied on the fact that the “severe or pervasive” threshold has always been a “high standard” requiring “extreme” conduct and a “hellish” workplace. But the court pointed to recent legislative changes lowering the legal standard for sexual harassment cases.
“In 2019, however, the Legislature added section 12923, which reaffirms a “‘“single incident of harassing conduct”’” may constitute harassment “‘“if the harassing conduct has unreasonably interfered with the plaintiff’s work performance or created an intimidating, hostile, or offensive work environment.”’” (citation) It also “‘clarified that a hostile work environment exists “when the harassing conduct sufficiently offends, humiliates, distresses, or intrudes upon its victim, so as to disrupt the victim’s emotional tranquility in the workplace, affect the victim’s ability to perform the job as usual, or otherwise interfere with and undermine the victim’s personal sense of well-being.”’” (citations) “‘The plaintiff is not required to show a decline in productivity, only “that a reasonable person subjected to the discriminatory conduct would find, as the plaintiff did, that the harassment so altered working conditions as to ‘make it more difficult to do the job.’”’” (Citation.)
Relying on this lower standard, the court found Carranza presented substantial evidence that the harassment was severe or pervasive to create a hostile work environment, i.e., that the harassing conduct sufficiently offended, humiliated, or distressed Carranza and that a reasonable person subjected to the same conduct would determine, as Carranza did, that “the harassment so altered working conditions as to make it more difficult to do her job.”
The court further noted, “Compounding Carranza’s distress was the fact that, despite her repeated requests, the Department did not order LAPD officers to stop sharing the photo, advise them that it was not Carranza in the photo, or discipline anyone involved in the distribution of the photo. That the LAPD allowed the distribution to continue unchecked not only speaks to the sufficiency of the LAPD’s response to the harassment, but also to the pervasiveness and severity of the harassment itself and the impact on Carranza’s work environment.”
Secondhand Harassment Was Sufficient
It is important for employers to note that no one ever made a derogatory comment directly to Carranza; nor did she ever personally see anyone view the photo. She learned about the existence of the photo and jokes through reports of others.
But the Court rejected the City’s position that a plaintiff must be harassed to her face as inconsistent with the long-standing principle that “‘a person can perceive, and be affected by, harassing conduct in the relevant environment ‘by knowledge of that harassment’ as well as by ‘personal observation.’”
The Court further, explaining that “FEHA does not reward discretion in harassing behaviors” noting that the Captain was not required to have “(1) had any direct interaction in which a coworker was disrespectful to her regarding the photo, (2) experienced direct ‘sexual hostility in her day-to-day work environment,’ or (3) been ‘assaulted, threatened, propositioned, subjected to physical contact, or subjected to explicit language in her presence.’ Instead, California law protects workers from environments “poisoned by inappropriate conduct—whether ‘sung, shouted, or whispered.’”
As such, the court concluded that the jury reasonably could determine that Carranza’s knowledge of the widespread circulation of this sexualized nude image purporting to depict her, along with crude commentary, affected her ability to perform the job as usual, or otherwise interfered with and undermined her personal sense of well-being.
What Can Employers Learn?
- Employees do not have to suffer direct harassment to be actionable. As the court stated above, an employee is not required to have direct interaction with a coworker for the harassing behavior to create a hostile or offensive work environment. Even without direct interpersonal interaction, harassing conduct may still warrant investigation.
- Allegations of “mere gossip” may require employer intervention. Employers are liable for harassment if the entity, or its agents or supervisors, knows or should have known of harassing conduct and fails to take immediate and appropriate corrective action. Therefore, if a supervisor or HR learns about inappropriate pictures or jokes being shared, it is no longer sufficient to sit back and wait for a complaint to be filed.
- Prompt remedial action requires some action by the employer. FEHA obligates an employer to take all reasonable steps to stop and prevent harassment and discrimination from occurring; and employers may limit their potential damages if they can show that they responded effectively to complaints. What action to take is fact-dependent. In Carranza, the harassment continued well after the complaint was made, and during the length of the internal investigation, which lasted nine months. While management may have had reasons for not issuing a department-wide communication, even a targeted message to those known to be circulating the photo could have demonstrated to the jury that the employer took meaningful action.
