WORKPLACE SEXUAL HARASSMENT – EMPLOYEES
Sexual harassment can rear its ugly head from a number of perspectives, ranging from full-on rape to psychological office workplace harassment. For employees seeking to bring a claim for workplace sexual harassment, the key to having a solid case is having someone who can act as a witness regarding what is taking or already has taken place, as you can be certain that the other side will wholly deny it.
More importantly is ensuring your safety. If you are, have been, or worried you will be the victim of sexual harassment, you should avoid contact with the harasser or potential harasser as much as possible, and notify human resources or management. The harasser or potential harasser may invite you to come to work in the evening or on weekends when no one is there; simply say no. If you can, contact your human resources department or supervisor and inform them of this immediately. If you do not make your position clear to the perpetrator, he or she will continue to inch their way forward until the conduct reaches the point of no return.
- WHAT IS SEXUAL HARASSMENT?
- SEXUAL HARASSMENT DEFINED
The United States Equal Employment Opportunity Commission (“EEOC”) defines workplace sexual harassment as “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature.” In California, workplace sexual harassment includes verbal, physical, and visual harassment, as well as unwanted sexual advances. See Cal. Code Regs., tit. 2, § 11034(f).
- WHEN IS CONDUCT CONSIDERED SEXUAL HARASSMENT
According to the EEOC, workplace conduct and behavior directed at an employee or applicant becomes sexual harassment when:
- This conduct explicitly or implicitly affects an individual’s employment;
- It unreasonably interferes with an individual’s work performance; and
- It creates an intimidating, hostile, or offensive work environment.
In California, the test is both an objective, and subjective one, wherein “[a] sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so.” Lyle v. Warner Bros. Television Prod., 38 Cal.4th 264, 284 (2006). California also does not require that the motive behind the sexual harassment be sexual in nature. Rather, “sexual harassment occurs when…sex is used as a weapon to create a hostile work environment.” Singleton v. United States Gypsum Co., 140 Cal.App.4th 1547, 1564 (2006), [internal citation omitted].
To put simply, the “plaintiff must show that the harassing conduct took place because of the plaintiff’s sex, but need not show that the conduct was motivated by sexual desire.” Pantoja v. Anton, 198 Cal.App.4th 87, 114 (2011).
- TYPES OF SEXUAL HARASSMENT
In California, there are two types of sexual harassment: (1) Quid Pro Quo Sexual Harassment; or (2) Hostile Work Environment Sexual Harassment.
“Quid pro quo” (Latin for “this for that”) sexual harassment is where an employer conditions an employee’s or an applicant’s job or promotion on the requirement that said employee or applicant submit to the employer’s sexual advances or other conduct with an innate sexual nature. Cal. Code Regs., tit. 2, § 11034(f)(1).
- QUID PRO QUO WORKPLACE SEXUAL HARASSMENT
In California, quid pro quo harassment occurs when an employee or an applicant is required to submit to sexual conduct, as a condition for concrete employment benefits. Such benefits include, but are not limited to: (1) hiring; (2) promotion; (3) job retention; (4) salary raise; or (5) other similar employment benefits. See Fisher v. San Pedro Peninsula Hospital, 214 Cal.App.3d 590, 607 (1989).
Claims for quid pro quo sexual harassment are distinct from bothersome attentions or sexual remarks. Although such behavior and conduct may be, to some degree and/or level, intrusive to your work environment, bothersome attention and sexual remarks do not satisfy the standard for a claim of quid pro quo sexual harassment. See Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 751, 753-754 (1998). The United States Supreme Court in Ellerth highlighted the key distinction in whether a plaintiff has sufficiently shown quid pro quo sexual harassment. The Court held that the conduct the plaintiff was subjected to had to be “based on threats which are carried out” and the conduct must be severe or pervasive.
Examples of Quid Pro Quo Harassment Include:
- Requests for sexual favors, such as an employer or supervisor offering an employee a raise in exchange for sex.
- A supervisor telling an employee to have sex with them or face termination.
- A supervisor telling an employee to have sex with them or face demotion.
- A job applicant being asked to engage in sexual acts in order to obtain a position.
This means that where a plaintiff proves that a tangible employment action resulted from a refusal to submit to a supervisor’s sexual demands, then a plaintiff has established that the employment decision itself constituted a change in the terms and conditions of their employment, and therefore satisfies the minimum threshold required to bring a legal claim for quid pro quo harassment. Id.
- HOSTILE WORK ENVIRONMENT SEXUAL HARASSMENT
For hostile work environment sexual harassment, courts look at several factors, including the nature of the conduct, frequency, number of days it went on and context of the conduct.
Note: The conduct must be severe or pervasive. Generally, hostile work environments involve multiple acts or a pattern of harassment over time that becomes pervasive. Sometimes, a single act that is so severe that it creates a hostile work environment, but it can also involve patterns such as:
- Unwelcome sexual advances.
- Sexual comments, slurs or taunts.
- Groping, kissing or unwanted touching.
- Sending sexually explicit emails, texts or pictures.
- Pervasive displays of materials with sexually explicit images or language.
- LAWS THAT PROTECT AGAINST SEXUAL HARASSMENT
Both state and federal laws protect employees against sexual harassment.
Federal Law
Title VII of the Civil Rights Act of 1964 makes discrimination on the basis of sex unlawful.
State Law
In California, the Fair Employment and Housing Act (“FEHA”) explicitly makes sexual harassment unlawful. FEHA generally provides more protection and damages for employees who are victims of workplace sexual harassment.
For assistance, or more information regarding workplace sexual harassment and how to bring an action for workplace sexual harassment you have been a victim of, contact the employment attorneys at San Diego Biz Law, APC.
The material in this article, provided by San Diego Biz Law, APC, is designed to provide informative and current information as of the date of the post. It should not be considered, nor is it intended to constitute, legal advice or promise similar outcomes.
WORKPLACE SEXUAL HARASSMENT – EMPLOYEES
Sexual harassment can rear its ugly head from a number of perspectives, ranging from full-on rape to psychological office workplace harassment. For employees seeking to bring a claim for workplace sexual harassment, the key to having a solid case is having someone who can act as a witness regarding what is taking or already has taken place, as you can be certain that the other side will wholly deny it.
More importantly is ensuring your safety. If you are, have been, or worried you will be the victim of sexual harassment, you should avoid contact with the harasser or potential harasser as much as possible, and notify human resources or management. The harasser or potential harasser may invite you to come to work in the evening or on weekends when no one is there; simply say no. If you can, contact your human resources department or supervisor and inform them of this immediately. If you do not make your position clear to the perpetrator, he or she will continue to inch their way forward until the conduct reaches the point of no return.
- WHAT IS SEXUAL HARASSMENT?
- SEXUAL HARASSMENT DEFINED
The United States Equal Employment Opportunity Commission (“EEOC”) defines workplace sexual harassment as “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature.” In California, workplace sexual harassment includes verbal, physical, and visual harassment, as well as unwanted sexual advances. See Cal. Code Regs., tit. 2, § 11034(f).
- WHEN IS CONDUCT CONSIDERED SEXUAL HARASSMENT
According to the EEOC, workplace conduct and behavior directed at an employee or applicant becomes sexual harassment when:
- This conduct explicitly or implicitly affects an individual’s employment;
- It unreasonably interferes with an individual’s work performance; and
- It creates an intimidating, hostile, or offensive work environment.
In California, the test is both an objective, and subjective one, wherein “[a] sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so.” Lyle v. Warner Bros. Television Prod., 38 Cal.4th 264, 284 (2006). California also does not require that the motive behind the sexual harassment be sexual in nature. Rather, “sexual harassment occurs when…sex is used as a weapon to create a hostile work environment.” Singleton v. United States Gypsum Co., 140 Cal.App.4th 1547, 1564 (2006), [internal citation omitted].
To put simply, the “plaintiff must show that the harassing conduct took place because of the plaintiff’s sex, but need not show that the conduct was motivated by sexual desire.” Pantoja v. Anton, 198 Cal.App.4th 87, 114 (2011).
- TYPES OF SEXUAL HARASSMENT
In California, there are two types of sexual harassment: (1) Quid Pro Quo Sexual Harassment; or (2) Hostile Work Environment Sexual Harassment.
“Quid pro quo” (Latin for “this for that”) sexual harassment is where an employer conditions an employee’s or an applicant’s job or promotion on the requirement that said employee or applicant submit to the employer’s sexual advances or other conduct with an innate sexual nature. Cal. Code Regs., tit. 2, § 11034(f)(1).
- QUID PRO QUO WORKPLACE SEXUAL HARASSMENT
In California, quid pro quo harassment occurs when an employee or an applicant is required to submit to sexual conduct, as a condition for concrete employment benefits. Such benefits include, but are not limited to: (1) hiring; (2) promotion; (3) job retention; (4) salary raise; or (5) other similar employment benefits. See Fisher v. San Pedro Peninsula Hospital, 214 Cal.App.3d 590, 607 (1989).
Claims for quid pro quo sexual harassment are distinct from bothersome attentions or sexual remarks. Although such behavior and conduct may be, to some degree and/or level, intrusive to your work environment, bothersome attention and sexual remarks do not satisfy the standard for a claim of quid pro quo sexual harassment. See Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 751, 753-754 (1998). The United States Supreme Court in Ellerth highlighted the key distinction in whether a plaintiff has sufficiently shown quid pro quo sexual harassment. The Court held that the conduct the plaintiff was subjected to had to be “based on threats which are carried out” and the conduct must be severe or pervasive.
Examples of Quid Pro Quo Harassment Include:
- Requests for sexual favors, such as an employer or supervisor offering an employee a raise in exchange for sex.
- A supervisor telling an employee to have sex with them or face termination.
- A supervisor telling an employee to have sex with them or face demotion.
- A job applicant being asked to engage in sexual acts in order to obtain a position.
This means that where a plaintiff proves that a tangible employment action resulted from a refusal to submit to a supervisor’s sexual demands, then a plaintiff has established that the employment decision itself constituted a change in the terms and conditions of their employment, and therefore satisfies the minimum threshold required to bring a legal claim for quid pro quo harassment. Id.
- HOSTILE WORK ENVIRONMENT SEXUAL HARASSMENT
For hostile work environment sexual harassment, courts look at several factors, including the nature of the conduct, frequency, number of days it went on and context of the conduct.
Note: The conduct must be severe or pervasive. Generally, hostile work environments involve multiple acts or a pattern of harassment over time that becomes pervasive. Sometimes, a single act that is so severe that it creates a hostile work environment, but it can also involve patterns such as:
- Unwelcome sexual advances.
- Sexual comments, slurs or taunts.
- Groping, kissing or unwanted touching.
- Sending sexually explicit emails, texts or pictures.
- Pervasive displays of materials with sexually explicit images or language.
- LAWS THAT PROTECT AGAINST SEXUAL HARASSMENT
Both state and federal laws protect employees against sexual harassment.
Federal Law
Title VII of the Civil Rights Act of 1964 makes discrimination on the basis of sex unlawful.
State Law
In California, the Fair Employment and Housing Act (“FEHA”) explicitly makes sexual harassment unlawful. FEHA generally provides more protection and damages for employees who are victims of workplace sexual harassment.
For assistance, or more information regarding workplace sexual harassment and how to bring an action for workplace sexual harassment you have been a victim of, contact the employment attorneys at San Diego Biz Law, APC.
The material in this article, provided by San Diego Biz Law, APC, is designed to provide informative and current information as of the date of the post. It should not be considered, nor is it intended to constitute, legal advice or promise similar outcomes.