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 also 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:

1. This conduct explicitly or implicitly affects an individual’s employment;
2. It unreasonably interferes with an individual’s work performance; and
3. It creates an intimidating, hostile, or offensive work environment.

In California, the test for workplace sexual harassment is both objective and subjective. 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 actually perceives as such. Lyle v. Warner Bros. Television Prod., 38 Cal.4th 264, 284 (2006).

Additionally, California does not require that the motive behind sexual harassment be sexual in nature. Instead, “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).

Simply put, the plaintiff must demonstrate that the harassing conduct occurred because of their sex but does not need to prove that it 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
2. Hostile Work Environment Sexual Harassment

Quid pro quo (Latin for “this for that”) sexual harassment occurs when an employer conditions an employee’s or applicant’s job, promotion, or other employment benefits on their submission to the employer’s sexual advances or other conduct of a sexual nature. See Cal. Code Regs., tit. 2, § 11034(f)(1).

1. QUID PRO QUO WORKPLACE SEXUAL HARASSMENT

In California, quid pro quo harassment occurs when an employee or applicant is required to submit to sexual conduct as a condition for receiving concrete employment benefits. These benefits include, but are not limited to:

• • Hiring
  • Promotion
  • Job retention
  • Salary increase
  • Other similar employment benefits

See Fisher v. San Pedro Peninsula Hospital, 214 Cal.App.3d 590, 607 (1989).

Examples of Quid Pro Quo Harassment Include:

• • A supervisor or employer requesting sexual favors, such as offering an employee a raise in exchange for sex.
  • A supervisor threatening termination unless the employee engages in sexual acts.
  • A supervisor threatening demotion if the employee refuses sexual advances.
  • A job applicant being asked to engage in sexual acts to secure a position.

 

2. HOSTILE WORK ENVIRONMENT SEXUAL HARASSMENT

For hostile work environment sexual harassment, courts consider several factors, including:

• • The nature of the conduct
  • The frequency of the conduct
  • The duration of the conduct (number of days it persisted)
  • The context in which the conduct occurred

These factors help determine whether the behavior created a workplace that is intimidating, hostile, or abusive.

Examples of Hostile Work Environment Sexual Harassment Include:

• 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

 

SUPERVISOR HARASSMENT

Under the Fair Employment and Housing Act (FEHA), an employer is strictly liable for harassment by a supervisor. However, this liability applies only if the supervisor is acting in their supervisory capacity at the time of the harassment.

An employer is not strictly liable for a supervisor’s acts of harassment if the conduct arises from a completely private relationship that is unconnected to employment and does not occur at the workplace or during normal working hours.

See Atalla v. Rite Aid Corp., 89 Cal.App.5th 294, 309 (2023) (internal citations omitted).**

NON-SUPERVISOR HARASSMENT

When the harasser is a non-supervisory employee, employer liability is based on negligence—meaning the employer knew or should have known about the harassment and failed to take appropriate corrective action. Rehmani v. Superior Court, 204 Cal.App.4th 945, 952 (2012).

If a non-supervisory employee engages in harassment and the employer takes immediate and appropriate corrective action upon becoming aware of the misconduct—such as when the victim or another employee reports it—there is no unlawful employment practice under FEHA. Carrisales v. Dept. of Corrections, 21 Cal.4th 1132, 1136 (1999), called into doubt on other grounds by statute.

Additionally, employers should be aware that they may be liable for the conduct of certain agents under FEHA. See Cal. Gov. Code §§ 12925(d), 12926(d), 12940(j)(i); Reno v. Baird, 18 Cal.4th 640, 648 (1998).

For assistance or more information regarding workplace sexual harassment and how to defend against employee claims, 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.