When Brian Cranston stuffed a pillow around his waist to play LBJ in “All the Way” on Broadway, the script about President Johnson’s jawboning to get Title VII of the 1964 Civil Rights Act passed into law only told some of the legislative history. Another actor did play the Congressman from Virginia, Mr. Smith, who inserted “sex” as a protected class, expecting that none of his House colleagues would vote to pass the legislation which he ardently opposed. But no one played Eleanor Roosevelt, then on the President’s Commission on the Status of Wo-men, who opposed including “sex” because she feared the Virginia Congressman was right and the protections accorded to persons in other categories would be lost. And no one played Rep. Green of Oregon, who opined that it would be discrimination for a college seeking to hire a dean of women or a family seeking a nurse for an elderly parent to only advertise for women.

All three were wrong: the legislation passed.

Despite derision from some of his former Senate colleagues, LBJ happily signed it. Title VII became the law, but with no discussion at all about what Congress intended the term “sex” to include. Although difficult today to grasp, it took 23 years before the U.S. Supreme Court would conclude that sexual harassment was a form of gender discrimination. In Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986), the Court acknowledged that harassment is a form of sex discrimination, concluding that both quid quo pro harassment and conduct that creates a hostile, offensive, and intimidating workplace environment are actionable. The Court directed that employers could defend against such claims by having a policy against it, investigating claims, and when allegations were substantiated, taking immediate and appropriate corrective action. Meritor Savings held that an employer may be liable if it knew or should have known of the unlawful conduct and failed to take steps to prevent the conduct from recurring.

As the 60th anniversary of Title VII approaches, it is worth looking back at the judicial standards that have evolved, California’s efforts to end prohibited conduct, and at recent cases involving nuanced circumstances and other decisions demonstrating that hostile and offensive behavior persists.

An employee can show a hostile working environment simply by demonstrating that the harasser’s conduct was sufficiently severe or pervasive, without offering evidence of psychological damage. Harris v. Forklift Sys. Inc., 510 U.S. 17 (1993); Miller v. Dep’t of Corr., 36 Cal. 4th 446, 462 (2005). The Harris decision found that, in most instances, the harassment must be shown to affect one’s ability to work. The conduct must not only be offensive to the victim, but to a reasonable person. Not all harassment rises to the level of a legal violation: the conduct must be sufficiently pervasive, as measured by the severity, regularity, and whether it is physically threatening or humiliating or merely a single offensive utterance. Etter v. Veriflo Corp., 67 Cal. App. 4th 457 (1998); Lyle v. Warner Bros. Television Prods., 38 Cal. 4th 264, 283 (2006).

California law on the subject may be more strict than federal. For example, federal cases allow an employer an affirmative defense when it establishes that it exercised reasonable care to prevent harassment and proves that the victim unreasonably failed to mitigate or to avoid the harm by failing or unreasonably delaying reporting the unlawful conduct. Burlington Industries v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca Raton, 524 U.S. 775 (1998). However, the California Supreme Court ruled that failing to undertake the “avoidable consequences” of failing or delay in reporting may only reduce damages, but is not grounds for avoiding liability. State Dept. of Health Services v. Superior Ct., 31 Cal. 4th 1026 (2003).

An employer may be held strictly liable for a supervisor’s harassment of an employee, regardless of whether the conduct was authorized, forbidden by, or known to the employer. State Dep’t of Health Servs, 31 Cal. 4th at 1042; Taylor v. Nabors Drilling USA, LP, 222 Cal.App.4th 1228, 1236-1237 (2014), citing Health Services, supra, 31 Cal. 4th at pp. 1040-1041. Addressing who is a “supervisor” for purposes of holding an employer liable for a supervisor’s harassing conduct, the U.S. Supreme Court has suggested that the offending individual must have authority to impose a tangible job action against an employee, such as hiring or firing. However, under the State test, an employee having authority to direct the day-to-day activities of employees is a “supervisor,” even if lacking authority to take tangible actions such as hiring, firing, transferring or disciplining. Chapman v. Enos, 116 Cal. App. 4th 920 (2004). Under FEHA, an employer is strictly liable for harassment by a supervisor. However, an employer is only strictly liable under FEHA for harassment by a supervisor “if the supervisor is acting in the capacity of supervisor when the harassment occurs.” State Dep’t of Health Services, supra, at p. 1041, fn. 3.

Courts have ruled that, under Title VII, a supervisor cannot be held personally liable. Mercado-Aponte v. Med Health Hospice, Corp., 203 F. Supp. 3d 240, 241 (D.P.R. 2016); Fantini v. Salem State Coll., 557 F.3d 22, 29 (1st Cir. 2009). However, in California, a supervisor may be personally liable for harassing a coworker. Janken v. GM Hughes Elecs., 46 Cal. App. 4th 55 (1996). If the conduct is outside the scope of his job, the employer has no duty to indemnify the perpetrating employee for the costs of defending against a claim or paying damages.

Complying with EEOC and California guidelines requires an employer to investigate any known or suspected incident of harassment, and numerous cases address the sufficiency of the employer’s efforts. In Steiner v. Showboat Operating Co., 25 F.2d 1459 (9th Cir. 1994), for example, a casino operator took no steps to investigate claims by one of its blackjack dealers until she filed a charge with a state agency. The court regarded the failure to investigate until forced to by the state as essentially condoning the conduct. In California, simple reference to the investigative procedure without an investigation sufficient to end the harassment is not enough. Bradley v. Cal. Dep’t. of Corr. & Rehab., 158 Cal. App. 4th 1612 (2008).