Yes, a California employer can be legally responsible when the person harassing a worker does not work there. Government Code section 12940(j)(1), part of the Fair Employment and Housing Act, says an employer may be liable for sexual harassment by a non-employee when the employer, its agents or its supervisors knew or should have known about the conduct and failed to take immediate and appropriate corrective action. The harasser can be a customer, a client, a vendor, a delivery driver, a contractor, a patient or a guest. What matters is not who signs the harasser’s paycheck. What matters is what the employer knew and what the employer did about it.
That single sentence changes how these cases are analyzed. Nobody has to prove the company wanted the harassment to happen or approved of it. The question is narrower and more practical: at what point did the employer learn, or should it reasonably have learned, that a non-employee was harassing a worker, and what happened after that point. In the files we see, the employer’s own emails and shift notes usually answer that question better than any witness does. A manager who wrote “he does this to everyone, just avoid table 12” has documented the case for the employee.
What the statute actually says
FEHA prohibits harassment because of sex, which includes sexual harassment, gender-based harassment, and harassment based on pregnancy, gender identity and sexual orientation. For harassment by coworkers, an employer is liable if it knew or should have known and failed to take immediate and appropriate corrective action. Subdivision (j)(1) extends that same standard to harassment by people who are not employees at all, with one addition: in reviewing what corrective action was reasonable, the law directs the court to consider the extent of the employer’s control and any other legal responsibility the employer may have with respect to the conduct of that non-employee.
That control language is where the real argument lives. A restaurant has considerable control over a guest at a table. It can move the server, ask the guest to leave, refuse service, call the police. A staffing agency placing a worker at a client site has less direct control but is not powerless: it can raise the issue with the client, remove the worker without penalty, or end the placement. A hospital cannot discharge a patient mid-treatment, but it can reassign staff, add a chaperone, document a behavior plan and warn incoming caregivers.
The defense in these cases is almost always some version of “there was nothing we could do.” The answer is usually that there was something, it was cheap, and nobody did it.
There is a related duty in section 12940(k), which requires an employer to take all reasonable steps necessary to prevent harassment from occurring in the first place. A failure-to-prevent claim generally travels alongside an actual harassment claim rather than standing alone, but it is what allows evidence about the missing policy, the training that never happened and the complaint line nobody answered to come into the case.
The two things that decide the case
Notice
Notice can be actual or constructive. Actual notice is the complaint the worker made to a shift lead, the text message to a manager, the note in the incident log, the email to human resources. Constructive notice is the harder and often more powerful version: the conduct was so open, so frequent, or so widely discussed that a reasonable employer would have known.
Notice does not require a formal written complaint. California law does not condition an employer’s duty on the employee filling out the right form. If a supervisor watched it happen, the employer knew. If three coworkers were warned about the same regular customer during onboarding, the employer knew. If a prior worker quit over the same person, the employer knew.
Response
Once the employer is on notice, the response is measured on two things: speed and adequacy. Immediate means promptly, not eventually. Appropriate means reasonably calculated to end the harassment, judged by what the employer could actually do.
Responses that generally hold up include separating the worker from the harasser without cutting her hours or pay, barring the person from the premises, ending a vendor relationship, escalating to the client company in writing, and documenting the whole sequence. Responses that generally do not hold up include moving the employee to a worse shift, telling her to be nicer to the customer, promising to look into it and never following up, or investigating so slowly that the harassment continues for months.
One point that surprises people: the corrective action cannot punish the person who complained. Moving a server to the graveyard shift so she will not run into a regular is not a fix. It is often the start of a retaliation claim under section 12940(h), which is a separate violation with its own remedies.
What to do if a customer, client or vendor is harassing you
The order matters here, because each step builds the record for the next one.
- Write it down the same day. Date, time, location, exactly what was said or done in the person’s own words, who else was present. Contemporaneous notes made on the day carry far more weight than a summary written months later.
- Report it in writing to someone with authority. A text or email to a manager is enough. Say plainly that the conduct is unwelcome and sexual in nature, and ask what the company will do. Putting it in writing converts a disputed conversation into a dated document.
- Keep your own copy. Forward the email to a personal account, photograph the schedule change, save the messages. Access to a work account can disappear the day the employment ends.
- Ask for the policy and the incident report. Most handbooks promise an investigation. A handbook is a company’s own statement of what a reasonable response looks like, and the gap between the promise and what happened is evidence.
- Note what changed after you reported. Fewer hours, a worse section, sudden write-ups, a schedule that no longer works with your childcare. Those changes are the evidence of retaliation.
- Get medical or counseling care if you need it. Treatment records document harm, and more importantly they help.
If the conduct escalates to unwanted touching, grabbing or an assault, that is no longer only an employment issue. It is a crime, and it may also support a premises liability claim against the business that allowed a known dangerous person to keep coming back. We handle that overlap in cases involving guests and third parties on commercial property, including injuries at hotels and hospitality venues, where staff frequently work alone with intoxicated guests, and injuries at apartment properties, where on-site managers, leasing agents and maintenance workers are sent into units by themselves.
Deadlines, and why they are shorter than people think
Before filing a FEHA lawsuit, a worker generally must file a complaint with the California Civil Rights Department, the agency formerly known as the DFEH, and obtain a right-to-sue notice. The current deadline for filing that administrative complaint is three years from the last act of harassment. After the right-to-sue notice issues, a lawsuit generally must be filed within one year.
Three years sounds like a long time. It is not, because the strongest evidence in these cases has a much shorter shelf life. Security video is often overwritten in thirty to ninety days. Point-of-sale records, badge swipes and door logs age out. Coworkers who saw everything move on, change numbers, and stop returning calls. If the harassment happened at a business open to the public, the camera footage is usually the difference between a case and a swearing match, and it needs to be requested in writing early.
Claims against a public entity employer follow a different and much shorter track, and other claims that ride alongside a harassment case, such as assault or battery, carry their own limitation periods. If you are unsure which deadline applies to your situation, treat it as urgent rather than assuming you have years.
Where the work happened also matters for practical reasons. Service, hospitality, healthcare and delivery workers across Los Angeles and the San Fernando Valley, including Van Nuys, often work at franchised or contracted sites where the records sit with three different companies: the staffing agency, the operator and the property owner. Sorting out which entity held the camera footage and which one received the complaint is part of the early work, and it is easier to do in the first month than in the second year.
What the law allows a worker to recover
FEHA remedies include lost wages and benefits, emotional distress damages, and, in appropriate cases, attorney’s fees to a prevailing employee. Injunctive relief is available, meaning a court can order the employer to change how it handles these complaints. Where an employer’s conduct meets the standard for malice, oppression or fraud, punitive damages are possible.
No two cases carry the same value, and anyone who quotes you a number before reading the documents is guessing. What we can say is that the size of these cases usually turns on the same thing that decides liability: how long the employer let it continue after it knew.
Key points
- Government Code 12940(j)(1) makes an employer liable for harassment by non-employees when it knew or should have known and failed to take immediate and appropriate corrective action.
- The employer’s degree of control over the harasser affects what response is considered reasonable, but almost every employer has some option available.
- Notice can be constructive: widely known conduct counts even without a formal complaint.
- Corrective action that reduces the complaining worker’s hours, pay or shift quality can create a separate retaliation claim.
- FEHA claims generally require an administrative complaint with the Civil Rights Department within three years, then suit within one year of the right-to-sue notice.
- Video and electronic records that prove the conduct are usually erased within weeks, so a written preservation demand should go out early.
Frequently asked questions
Can my employer be liable if the harasser is a customer who does not work there?
Yes. California law treats harassment by non-employees under the same knew-or-should-have-known standard that applies to coworker harassment. The employer’s liability comes from its own failure to respond, not from the harasser’s employment status.
What if I never made a formal complaint?
You can still have a claim. The statute asks whether the employer knew or should have known. If a supervisor witnessed the conduct, if the person had a reputation among staff, or if others had complained about the same individual, the employer was on notice regardless of whether you filed anything.
My employer moved me to a different shift and said the problem is solved. Is that enough?
It depends on whether the change actually stopped the harassment and whether it cost you anything. A transfer that reduces your hours, pay or opportunities generally is not appropriate corrective action, and it may itself be retaliation.
Do I have to sue my employer to get anything to change?
Not necessarily. Many of these matters resolve after a written demand that documents the notice timeline, and the Civil Rights Department process itself can produce a resolution. Filing suit is one option among several, and the choice depends on the evidence and on what you want out of it.
If a client, customer or vendor has been harassing you at work and your employer has not made it stop, it is worth having someone read the documents before the records disappear. You can reach our office any time, learn more about attorney Vaheh Manoukian and the matters this firm handles, or call (818) 818-5031 for a free and confidential consultation. Consultations cost nothing, and there is no fee unless we recover for you.
