Workplace Sexual Harassment Attorney for Employers
- 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).
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.
- 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.
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 FEHA, an employer is strictly liable for harassment by a supervisor. However, an employer is only strictly liable under FEHA for harassment by a supervisor “if the supervisor is acting in the capacity of supervisor when the harassment occurs. The employer is not strictly liable for a supervisor’s acts of harassment resulting from a completely private relationship unconnected with the employment and not occurring at the workplace or during normal working hours.’” 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 turns on a showing of negligence (that is, the employer knew or should have known of the harassment and failed to take appropriate corrective action).” Rehmani v. Superior Court, 204 Cal.App.4th 945, 952 (2012). “If an employee other than an agent or supervisor commits the harassment, and the employer takes immediate and appropriate corrective action when it becomes or reasonably should become aware of the conduct—for example, when the victim or someone else informs the employer—there simply is no ‘unlawful employment practice’ that FEHA governs.” Carrisales v. Dept. of Corrections, 21 Cal.4th 1132, 1136 (1999), called into doubt on other grounds by statute.
Lastly, employers should keep in mind that they may be liable for the conduct of certain agents. 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 of workplace sexual harassment, 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 Attorney for Employers
- 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).
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.
- 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.
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 FEHA, an employer is strictly liable for harassment by a supervisor. However, an employer is only strictly liable under FEHA for harassment by a supervisor “if the supervisor is acting in the capacity of supervisor when the harassment occurs. The employer is not strictly liable for a supervisor’s acts of harassment resulting from a completely private relationship unconnected with the employment and not occurring at the workplace or during normal working hours.’” 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 turns on a showing of negligence (that is, the employer knew or should have known of the harassment and failed to take appropriate corrective action).” Rehmani v. Superior Court, 204 Cal.App.4th 945, 952 (2012). “If an employee other than an agent or supervisor commits the harassment, and the employer takes immediate and appropriate corrective action when it becomes or reasonably should become aware of the conduct—for example, when the victim or someone else informs the employer—there simply is no ‘unlawful employment practice’ that FEHA governs.” Carrisales v. Dept. of Corrections, 21 Cal.4th 1132, 1136 (1999), called into doubt on other grounds by statute.
Lastly, employers should keep in mind that they may be liable for the conduct of certain agents. 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 of workplace sexual harassment, 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.