WORKPLACE SEXUAL HARASSMENT
Sexual harassment can rear its ugly head from several perspectives, ranging from full-on rape to psychological workplace harassment. We have dealt with both ends of this spectrum and can help. The key to having a solid case is having someone who can act as a witness to what is taking place or has already occurred; you can be sure the other side will deny it.
Ensuring your safety is more important than having a strong case. If you are being sexually harassed, avoid contact with the person as much as possible. They may invite you to come to work in the evening or on weekends when no one is there—simply say no. If possible, contact your human resources department or supervisor and inform them immediately. If you do not make your position clear to the perpetrator, they will continue pushing boundaries until it 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 or behavior directed at an employee or applicant constitutes sexual harassment when:
- This conduct explicitly or implicitly affects an individual’s employment.
- It unreasonably interferes with an individual’s work performance.
- It creates an intimidating, hostile, or offensive work environment.
In California, the test is both objective and subjective, 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 perceived as such.’ Lyle v. Warner Bros. Television Prod., 38 Cal.4th 264, 284 (2006). California also does not require that the motive behind 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).
Simply put, the plaintiff must show that the harassing conduct occurred because of their sex but does not need to prove that it was motivated by sexual desire.
TYPES OF SEXUAL HARASSMENT
In California, there are two types of sexual harassment: (1) Quid Pro Quo Sexual Harassment and (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 or promotion on their submission to the employer’s sexual advances or other conduct of a 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 applicant is required to submit to sexual conduct as a condition for receiving concrete employment benefits. Such benefits include, but are not limited to:
(1) hiring, (2) promotion, (3) job retention, (4) salary raises, or (5) other similar employment advantages. 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. While such behavior may be intrusive to the work environment, bothersome attention and sexual remarks alone do not meet the legal standard for a quid pro quo sexual harassment claim. See Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 751, 753-754 (1998).*
The United States Supreme Court in Ellerth clarified this distinction, holding that the conduct must involve ‘threats that are carried out’ and must be severe or pervasive.
Examples of Quid Pro Quo Harassment
If a plaintiff can prove that a tangible employment action resulted from their refusal to submit to a supervisor’s sexual demands, they have established that the employment decision itself constituted a change in the terms and conditions of their employment. This, in turn, meets the legal threshold required to bring a quid pro quo harassment claim. Id.
- HOSTILE WORK ENVIRONMENT SEXUAL HARASSMENT
For hostile work environment sexual harassment, courts consider several factors, including the nature of the conduct, its frequency, duration, and the context in which it occurred.
Note: The conduct must be severe or pervasive to qualify as a hostile work environment. Generally, such environments involve multiple acts or a pattern of harassment over time that becomes pervasive. However, in some cases, a single act may be so severe that it creates a hostile work environment.
Examples of Hostile Work Environment Harassment
- Unwelcome sexual advances
- Sexual comments, slurs, or taunts
- Groping, kissing, or unwanted touching
- Sending sexually explicit emails, texts, or pictures
- Pervasive displays of materials containing sexually explicit images or language
These behaviors, when severe or pervasive, may constitute a legally actionable hostile work environment.
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 prohibits discrimination on the basis of sex. Under Title VII, sexual harassment is recognized as a form of sex discrimination.
State Law
In California, the Fair Employment and Housing Act (FEHA) explicitly prohibits sexual harassment. FEHA generally provides broader protections and greater potential damages for employees.
For assistance or more information regarding 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.