California law requires employers with five or more employees to provide interactive sexual harassment training to their employees annually. I generally open my trainings with a statement that invariably astounds the trainees: Not all workplace harassment is illegal.

It’s true. Work-related harassment is unlawful only if it is motivated by sexual interest or gender-based hostility by the victim’s membership in another protected classification (such as race, religion, or sexual orientation), or by the victim’s protected activity such as whistleblowing about reasonably perceived unlawful work-related behavior. General “abusive conduct” is not unlawful, even though California law requires harassment prevention training to address it.

Not all discrimination is illegal

Similarly, not all workplace discrimination is illegal. Merriam Webster’s online dictionary broadly defines “discrimination” as “the act, practice, or an instance of discriminating categorically rather than individually.”

The California Fair Employment & Housing Act, or FEHA, bars discrimination based on such categories as gender, race, religion, sexual orientation, and, starting this year (with some exceptions), off-duty marijuana use. California’s whistleblower law prohibits an employer from retaliating against an employee because the employee disclosed information about employer activity the employee reasonably believed was unlawful.

But categorical discrimination sometimes is appropriate, such as discrimination favoring education, experience, or the ability to speak more than one language.

An employer may not discriminate or retaliate against an employee on a prohibited basis in compensation or in terms, conditions or privileges of employment.

On Jan. 13 the Wall Street Journal published an article headlined “Remote Workers Are Losing Out on Promotions, New Data Shows.” The article focused on a report from employment-data provider Live Data Technologies based on a study of 2 million white-collar workers that found that fully remote workers were “promoted 31 percent less frequently than people who worked in an office, either full-time or on a hybrid basis.”

This gap in promotion rates occurred even though fully remote workers tend to be more productive than their fully on-site peers, according to research conducted by Stanford economist Nick Bloom cited in the article. Bloom attributes the promotions gap to remote employees’ reduced opportunity for casual in-person conversations that in turn lead to stronger relationships with those who decide whom to promote.

Bloom has concluded that remote workers are victims of, and on-site workers the beneficiaries of, “proximity bias,” the bias that comes from being physically close to upper management. “I literally call it discrimination,” said Bloom, according to the article.

But it probably isn’t illegal discrimination, even leaving aside that remote workers are not uniformly more productive than their on-site colleagues. FEHA does not recognize remote work, as such, as a protected classification. And while working remotely may be an option an employer extends to workers, remote work is almost never a right without a contractual agreement providing for such an arrangement.

There is a caveat to that statement. An employee may have the right to work remotely in those unusual instances where remote work is the only reasonably available accommodation to enable a disabled worker to perform the essential duties of their job. Barring that, an employer may insist on an accommodation the employer prefers for whatever reason.

Recent research led by Hyejin Youn, an associate professor of management and organizations at the Kellogg School of Management at Northwestern University, found that in-person collaboration is especially valuable where a project requires innovative thinking in a developing field. Being in the same space may spur the exchange of ideas among collaborators. Youn addressed the implications of her research in a recent edition of Kellogg Insight, the school’s online newsletter: “If you want to be innovative, if you want to collaborate and learn from each other at the cutting edge, you need to be in person.”

In other settings, employers legitimately may value the spontaneous generation of ideas from casual workplace encounters and the greater sense of shared mission that may result from a fully on-site staff.

California’s law of the workplace — which confers greater employee rights and imposes greater employer duties than most other jurisdictions — gives employers an underrecognized operational freedom in some areas. This is one of them.

Dan Eaton is a partner with the San Diego law firm of Seltzer Caplan McMahon Vitek where his practice focuses on defending and advising employers. He also is an instructor at the San Diego State University Fowler College of Business where he teaches classes in business ethics and employment law. He may be reached at eaton@scmv.com.