Yes. California’s Fair Employment and Housing Act, in Government Code section 12940(j), bars harassment of “a person providing services pursuant to a contract,” not just employees. A business that regularly uses even one contractor counts as an employer for harassment purposes. The statute defines a protected contractor with a three-part test focused on independence, so a worker who fails the test is likely an employee anyway and protected that way. Either way, a business that leaves its freelancers out of its harassment policy and complaint process carries exposure it may not see.
What does the statute say?
Contractors are named alongside employees. Government Code section 12940(j)(1) makes it unlawful to harass, because of a protected characteristic, “an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract.”
The same subdivision applies the usual liability rules. Harassment by a co-worker, other than an agent or supervisor, “shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action.” A contractor harassed by a supervisor can hold the business strictly liable, as an employee could.
Which businesses count as employers?
Almost any business that uses contractors. For harassment only, section 12940(j)(4)(A) defines employer as “any person regularly employing one or more persons or regularly receiving the services of one or more persons providing services pursuant to a contract.”
That’s a much lower bar than the general FEHA definition in section 12926(d), which covers “any person regularly employing five or more persons” for discrimination claims. A sole proprietor with no employees who regularly uses a freelance designer or bookkeeper can be an employer for harassment purposes.
Who is a protected contractor?
Someone who meets all three parts of a statutory test. Under section 12940(j)(5), the person must have “the right to control the performance of the contract for services and discretion as to the manner of performance,” must be “customarily engaged in an independently established business,” and must have “control over the time and place the work is performed, supplies the tools and instruments used in the work, and performs work that requires a particular skill not ordinarily used in the course of the employer’s work.”
| Worker | Likely status | Harassment protection |
|---|---|---|
| Freelancer with own business, tools, and schedule | Contractor under § 12940(j)(5) | Yes, as a contractor |
| “Contractor” working set shifts on company equipment | Likely an employee | Yes, as an employee |
| Vendor’s employee working on site | Neither, as to this business | Possibly, under nonemployee rules |
The test is a defense tool only in a narrow sense. A worker who fails it usually doesn’t lose protection; they become an employee, often with added wage and misclassification claims. Classification itself is covered in the firm’s post on the ABC test for independent contractors.
Do contractors get the failure-to-prevent claim too?
Not under the same subdivision. Section 12940(j)(1) says “An entity shall take all reasonable steps to prevent harassment from occurring,” and that duty is written broadly. The separate failure-to-prevent claim in subdivision (k) applies to employers, but whether a contractor can bring it is less settled. A contractor’s complaint should be handled as carefully as an employee’s regardless.
What should a business do when a contractor complains?
Treat it like any other harassment complaint.
- Preserve the contract, invoices, communications with the contractor, and any messages from the person accused.
- Calendar the response deadline on any CRD complaint or demand, and check whether the contract has an arbitration clause and whether the EPLI policy covers claims by nonemployees.
- Identify the person accused, their reporting line, and any witnesses.
- Pull the harassment policy and confirm whether it reached contractors and gave them a way to complain.
- Talk to counsel before ending the contract, since a termination right after a complaint invites a retaliation claim.
Complaints like these are part of defending California businesses that use independent contractors.
Contractor harassment questions employers ask
Does the harassment policy need to cover contractors?
It should. The statute protects contractors and requires reasonable steps to prevent harassment. A policy that speaks only to employees, with a complaint process only employees can use, makes it harder to argue the business did enough. Adding contractors to the policy scope and onboarding paperwork is simple and inexpensive.
Can the contractor sue the individual harasser?
Potentially. The FEHA makes an employee of a covered entity personally liable for harassment the employee commits. A contractor who sues often names both the business and the individual manager or co-worker, which can create separate defense and indemnity questions for the business.
Does ending a contract after a complaint create risk?
Yes. The FEHA’s retaliation provision, section 12940(h), protects “any person” who opposes forbidden practices or files a complaint. Ending a contractor’s engagement soon after a harassment complaint, without documented and unrelated reasons, is a common basis for a retaliation claim alongside the harassment claim.
If a contractor has raised a harassment claim against your business
If a freelancer or contractor has filed a CRD complaint, sent a demand, or sued over harassment, the contract terms and how the business responded to the complaint usually shape the defense. Rosenberger + Kawabata represents employers defending employment lawsuits and claims through its business litigation practice, including claims involving harassment of independent contractors. Contact Rosenberger + Kawabata online for a confidential consultation, or call (310) 894-6921.
Sources
The statutes are Government Code section 12926, subdivision (d), and Government Code section 12940, subdivisions (h), (j), and (k).
This post is general information about California and federal employment law as of November 7, 2026. It is not legal advice, and reading it does not create an attorney-client relationship. Employment statutes, regulations, and court decisions change often, and the outcome of any claim depends on its facts. Past results do not guarantee future outcomes.