Most employees understand that sexual harassment and workplace discrimination are illegal. What many don't realize is that their employer can be held directly liable not for committing the wrongdoing, but for failing to prevent it. This is one of the most powerful and frequently overlooked claims in California employment law, and it gives employees a direct legal path to hold companies accountable for the cultures they allow to fester.

California's Fair Employment and Housing Act (FEHA) imposes an affirmative, mandatory duty on every covered employer to prevent harassment and discrimination before it happens. When employers ignore that duty, they don't just face moral criticism they face lawsuits, damages, and court-ordered reform.

The Legal Foundation: Government Code § 12940(k)

The statute is clear and unambiguous. Government Code § 12940(k) makes it an unlawful employment practice for an employer to "fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring."

This is not a passive standard. California courts have interpreted this duty as affirmative and mandatory. The employer's duty to prevent harassment and discrimination is not simply reactive it must be proactive, systematic, and ongoing. As the Court of Appeal held in Northrop Grumman Corp. v. Workers' Comp. Appeals Bd. (2002) 103 Cal.App.4th 1021, 1035: the employer's duty to prevent harassment and discrimination is affirmative and mandatory.

Critically, an employer can be found liable under § 12940(k) even if it did not personally engage in any misconduct. If harassment or discrimination occurred, and the employer failed to take reasonable steps to prevent it, liability follows regardless of who the actual harasser was.

Three Tiers of Employer Liability Under FEHA

Employer liability for workplace harassment and discrimination under FEHA operates on three distinct tiers, depending on who committed the misconduct:

What "All Reasonable Steps" Actually Means

FEHA does not leave "reasonable steps" undefined. California's Civil Rights Department (CRD) and regulatory framework set out clear, specific obligations. California law requires employers to develop a written policy for the prevention of harassment, discrimination, and retaliation and employers must distribute the policy to all employees. Under California Code of Regulations, title 2, § 11023, the policy must include, among other elements, a description of the complaint process, instructions for supervisors to report complaints, and a confirmation that the employer will conduct a fair and timely investigation.

Beyond policy, employers with five or more employees must provide mandated sexual harassment training: at least two hours for supervisory employees and one hour for non-supervisory employees, once every two years.^[5] Training is not optional, and an employer who skips it or provides it in name only cannot credibly claim to have taken all reasonable steps.

When a complaint is actually filed, the obligation intensifies. Once an employer is informed of harassment, it must take adequate remedial measures meaning immediate corrective action reasonably calculated to end the current harassment and deter future harassment. This requires both temporary steps while investigating and permanent remedial steps after a finding.

How to Prove a § 12940(k) Claim

To succeed on a failure-to-prevent claim, a plaintiff must establish three core elements. First, the plaintiff must have been an employee, job applicant, or contract worker covered by FEHA. Second, the plaintiff must have experienced actionable harassment, discrimination, or retaliation during their employment. Third, the employer failed to take all reasonable steps necessary to prevent the unlawful conduct.

Importantly, courts have required a finding of actual discrimination or harassment under FEHA before a plaintiff may prevail under § 12940(k). The failure-to-prevent claim is strongest when paired with an underlying harassment or discrimination claim but it adds substantial independent value by allowing juries to evaluate the employer's systemic failures, not just the individual incident.

Evidence used to prove this claim includes: the absence of a written anti-harassment policy; proof that training was never conducted or was inadequate; evidence that prior complaints were ignored or mishandled; testimony from witnesses about a known pattern of misconduct; and documentation showing the employer took no corrective action after learning of the harassment.

What Damages Are Available?

A successful § 12940(k) claim typically brought alongside an underlying harassment or discrimination claim — can yield significant damages. These include back pay and lost benefits, front pay if reinstatement is not feasible, emotional distress and mental suffering damages, punitive damages where the employer's conduct was malicious or oppressive, and attorneys' fees and litigation costs. Regulatory agencies such as the CRD can also initiate investigations and impose fines, penalties, and mandatory compliance measures.

The Bottom Line

California's § 12940(k) reflects a fundamental principle: preventing workplace harassment is not optional, and waiting until something goes wrong is too late. An employer that fails to build a culture of prevention through policy, training, investigation, and correction is not just negligent. It is legally liable. The law holds companies accountable not only for what their managers do, but for what they choose not to prevent.

At Smith Reback Law, we pursue both the underlying harassment and discrimination claims and the employer's systemic failure to prevent them. These claims work together and together, they hold companies fully accountable for the environments they build and the harm they allow. If you've experienced harassment or discrimination that your employer ignored or enabled, we're ready to fight for you.