Overheard and Affected: Can Bystanders Sue for Sexual Harassment Under the FEHA?

Many California employees are surprised to discover that workplace sexual harassment does not have to be directed at them personally for them to have a viable legal claim. Under the Fair Employment and Housing Act (FEHA)—California’s principal law prohibiting workplace discrimination and harassment—employees who witness or overhear sexually harassing behavior may still be entitled to legal protection. These so-called “bystander” claims acknowledge that a workplace permeated by harassment can harm not only the direct targets, but also those who are exposed to the offensive conduct.

This article explores the legal framework governing bystander harassment claims under FEHA, highlights key decisions from California and federal courts, draws illustrative examples from diverse industries, and incorporates guidance from the California Civil Rights Department (CRD) and the U.S. Equal Employment Opportunity Commission (EEOC). The objective is to provide both employees and employers with a deeper understanding of how California law safeguards those who operate within the shadow of harassment—even if they are not its immediate focus.

Understanding FEHA and Workplace Harassment

The Fair Employment and Housing Act (FEHA) prohibits harassment on the basis of sex, gender, sexual orientation, gender identity, and various other protected characteristics. Unlike discrimination—which typically involves adverse employment actions such as termination, demotion, or denial of promotion—harassment under FEHA refers to conduct that fosters a hostile, intimidating, or abusive work environment. Harassment becomes unlawful when it is sufficiently severe or pervasive to alter the conditions of employment and create an environment that is offensive, threatening, or degrading.

Crucially, the harassing conduct need not be directed at the plaintiff personally. An employee may assert a valid harassment claim if they are exposed to, and harmed by, offensive behavior occurring within their workplace—even when that behavior targets others. Both California courts and the Legislature have consistently recognized that a sexually hostile work environment can adversely affect all employees who are compelled to work in its shadow, regardless of whether they are the direct targets of the misconduct.

You Don’t Have to Be the Target to Have a Claim

California courts have consistently affirmed that an employee need not be the direct target of harassing conduct to suffer actionable harm. In Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, the court recognized that an individual may be a victim of sexual harassment even when no offensive comments or physical contact are specifically directed at them. The critical inquiry is whether the harassing conduct was sufficiently pervasive to taint the plaintiff’s overall work environment.

In Beyda v. City of Los Angeles (1998) 65 Cal.App.4th 511, the court further clarified that so-called “second-hand” harassment must still rise to a level of severity or pervasiveness that materially alters the conditions of employment. Additionally, the plaintiff must have had contemporaneous, personal knowledge of the misconduct. If the plaintiff did not witness the harassment or become aware of it until much later, the conduct cannot form the basis of a hostile work environment claim.

Sexual Favoritism as Bystander Harassment

In Miller v. Department of Corrections (2005) 36 Cal.4th 446, the California Supreme Court examined a bystander harassment claim rooted in allegations of workplace sexual favoritism. Two female correctional officers asserted that their supervisor engaged in sexual relationships with subordinate employees, who were then rewarded with preferential treatment. The plaintiffs contended that this pattern fostered a workplace culture in which women were perceived as sexual objects whose professional advancement hinged on acquiescing to the supervisor’s advances. The Court agreed, holding that pervasive sexual favoritism can send a demeaning and discriminatory message to other employees—particularly women—thereby contributing to a hostile work environment. Although the plaintiffs were not themselves propositioned, they were nonetheless entitled to pursue a harassment claim based on the broader environment of favoritism and objectification.

SB 1300: Codifying Broader Protections for Harassment Victims

In 2019, California enacted SB 1300 to clarify and expand the protections afforded under FEHA. Among its key provisions, SB 1300 added Government Code section 12923, which affirms that a single incident of harassing conduct may suffice to raise a triable issue of hostile work environment—so long as the conduct unreasonably interferes with an employee’s work performance or creates an intimidating, hostile, or offensive workplace.

The statute further instructs courts not to impose a “heightened standard” when evaluating hostile work environment claims and expressly cautions that such claims are rarely suitable for resolution at the summary judgment stage. This legislative guidance underscores the importance of allowing juries to weigh context, assess credibility, and consider the totality of the circumstances—particularly in cases involving bystander claims.

In effect, SB 1300 reinforces that bystander harassment claims are entitled to equal protection under the law. Employees compelled to work in environments permeated by sexual conduct or gender-based hostility may assert valid claims, even if they were not themselves subjected to explicit touching or direct verbal abuse.

Limits of Bystander Claims: Context Still Matters

Not every instance of vulgar or inappropriate workplace conduct gives rise to legal liability. In Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, the California Supreme Court considered a bystander harassment claim brought by a writers’ assistant on the sitcom Friends. The plaintiff alleged that she was routinely exposed to sexually explicit jokes and discussions among the show's writing staff.

While the Court reaffirmed the legitimacy of bystander harassment claims in principle, it ultimately concluded that the conduct at issue in Lyle was not actionable. The Court emphasized that the sexual commentary was integral to the creative process of writing a sexually themed television show and was not directed at the plaintiff personally or at women as a group. As such, the conduct lacked the necessary nexus to the plaintiff’s protected status.

This decision underscores the importance of context in evaluating workplace harassment claims. Even crude or explicit speech will not amount to unlawful harassment unless it is connected to a protected characteristic or directed in a way that contributes to a hostile work environment for the plaintiff.

Workplace Music as Harassment: The Ninth Circuit Weighs In

The Ninth Circuit’s decision in Sharp v. S&S Activewear, LLC (9th Cir. 2023) 69 F.4th 974 provides a compelling example of how federal courts, applying California principles, approach bystander harassment claims. In Sharp, warehouse employees alleged that their employer subjected them to loud, incessant broadcasts of sexually explicit and misogynistic music throughout the workplace. The lyrics frequently glorified violence against women and employed sexually degrading language.

The employer contended that the music was indiscriminately offensive to all employees—regardless of gender—and thus could not support a claim of sex-based harassment. The court firmly rejected this argument, emphasizing that the presence of “equal-opportunity” offensiveness does not immunize an employer from liability. The court held that sexually degrading content, even when not aimed at a particular individual, may still create a hostile work environment “because of sex.”

The Ninth Circuit further affirmed that unlawful harassment does not require individualized targeting. When a workplace is permeated with pervasive, gender-based derogatory content, the resulting environment may be objectively hostile—and those compelled to endure it, whether direct targets or bystanders, may assert valid claims under anti-harassment laws.

Agency Guidance Supports Bystander Protection

California’s Civil Rights Department (CRD) actively encourages employers to implement bystander intervention training. Although not legally required, such training reflects the state’s strong public policy favoring proactive measures to prevent and address workplace harassment. Bystander intervention is increasingly recognized as a vital strategy for cultivating safe, respectful, and inclusive work environments.

The U.S. Equal Employment Opportunity Commission (EEOC) likewise urges employees who witness harassment to report it and affirms that the law protects all individuals affected by a hostile work environment—not solely those who are directly targeted. Both agencies underscore that workplace harassment can contaminate the broader environment, undermining the dignity, morale, and well-being of employees who are merely forced to witness or coexist with the offending conduct.

Retaliation Protections for Bystanders

Both FEHA and Title VII prohibit retaliation against employees who report or oppose workplace harassment—including those who do so on behalf of others. Bystanders who speak out about inappropriate conduct directed at coworkers are protected under the law, and any adverse action taken against them in response may give rise to an independent retaliation claim—even if their underlying harassment claim is ultimately unsuccessful.

These protections are especially critical given that direct victims of harassment may hesitate to come forward due to fear, stigma, or power imbalances. In many cases, bystanders serve as the first line of defense in identifying and challenging abusive workplace behavior. Ensuring strong legal safeguards for these individuals is essential to fostering a culture of accountability, transparency, and respect in the workplace.

Conclusion

California law robustly affirms the right of all employees to work in an environment free from sexual harassment. Through a combination of judicial precedent and legislative action—most notably the enactment of SB 1300—the state has made clear that these protections extend beyond direct victims. Employees who witness or overhear unwelcome, sex-based conduct may have a viable legal claim if the behavior is sufficiently severe or pervasive to affect their own working conditions.

To succeed on a bystander harassment claim, a plaintiff must demonstrate that the conduct occurred within their work environment, that they were contemporaneously aware of it, and that the conduct would have offended a reasonable person in their position. While context remains critical, California law now offers a clear and accessible legal framework for bystanders to assert their right to a harassment-free workplace.

For employees, the key takeaway is this: you are not required to tolerate a toxic, degrading, or sexually hostile work environment simply because the harassing behavior is directed at someone else. If what you are seeing, hearing, or experiencing contributes to an abusive atmosphere, you have legal rights. For employers, the message is equally vital: workplace culture impacts everyone, and a failure to address harassment—regardless of its target—can result in substantial legal exposure.

Disclaimer: This article is intended for informational purposes only and does not constitute legal advice. For guidance specific to your situation, consult an experienced employment attorney.