Abusive conduct vs harassment in California: what is the difference?

Harassment under California's Fair Employment and Housing Act is conduct because of a protected characteristic, such as sex, gender identity or race (Gov. Code § 12940(j)). Abusive conduct, defined in § 12950.1, is conduct with malice that a reasonable person would find hostile, offensive and unrelated to the employer's legitimate business interests, whatever the reason. Mandatory training must cover how to prevent both¹².

The distinction confuses supervisors because both words describe "bad behavior". It matters because only harassment is an unlawful employment practice under FEHA, while abusive conduct is something employers must train against and usually prohibit in their own policies.

Harassment under FEHA

FEHA makes it unlawful to harass an employee, applicant, unpaid intern, volunteer or contractor because of a protected characteristic, including race, religion, national origin, disability, medical condition, sex, gender, gender identity, gender expression, sexual orientation, age and others (Gov. Code § 12940(j))². Harassment can come from supervisors, coworkers or third parties such as customers.

The legislature has stated that a single incident can be enough to create a triable issue of a hostile work environment, if it unreasonably interfered with the employee's work or created an intimidating, hostile or offensive working environment (§ 12923(b))³.

Abusive conduct under § 12950.1

Section 12950.1 requires harassment prevention training to include prevention of abusive conduct, defined as conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive and unrelated to the employer's legitimate business interests¹. Examples given in the statute include:

• repeated infliction of verbal abuse, such as derogatory remarks, insults and epithets;
• verbal or physical conduct that a reasonable person would find threatening, intimidating or humiliating;
• the gratuitous sabotage or undermining of a person's work performance.

A single act is not abusive conduct unless it is especially severe and egregious.

Side by side

Why it matters for supervisors

From a supervisor's chair, the response is the same. An employee who says "my lead humiliates me every day" may be describing abusive conduct, harassment based on a protected characteristic the employee has not mentioned yet, or both. The supervisor does not decide which: they listen, gather facts and report it to the designated representative, as the employer's policy requires (2 CCR § 11023(b)(6))⁴. The investigation sorts out the legal label.

Many employer policies prohibit abusive conduct outright, so it is handled through the same complaint process.

Where criticism ends

Abusive conduct must be unrelated to legitimate business interests. Telling an employee, privately and with facts, that four reports were late is performance management. Insulting them in front of the team is not. Supervisors who give feedback on facts, in private, with a plan, stay on the right side of the line.

Receiving a harassment report in California trains supervisors on the first conversation after a report, with an AI-simulated employee and a coach that flags each line. It is an awareness complement, not the § 12950.1 training, which also has to cover abusive conduct prevention. The course is unofficial; the completion record shows completion only. See California harassment training requirements for what the mandatory training needs.

See the course

FAQ

What is abusive conduct in California?

Conduct in the workplace, with malice, that a reasonable person would find hostile, offensive and unrelated to the employer's legitimate business interests, as defined in Gov. Code § 12950.1.

Is abusive conduct illegal in California?

FEHA makes harassment based on a protected characteristic unlawful. Abusive conduct is defined for training purposes and is commonly prohibited by employer policies.

Is a single insult abusive conduct?

Not usually. A single act is not abusive conduct unless it is especially severe and egregious.

Must California training cover abusive conduct?

Yes. Section 12950.1 requires harassment prevention training to include prevention of abusive conduct.