Sexual Harassment

Sexual Harassment

Unlike Title VII, California’s Fair Employment and Housing Act expressly prohibits sexual harassment in the workplace. Under the Fair Employment and Housing Act, it is an unlawful employment practice to harass an employee, job applicant, or independent contractor because of “sex”, which is defined to include sexual harassment. Under California law, harassment because of “sex” also includes gender harassment and harassment based on pregnancy, childbirth, or related medical conditions. Sexual harassment does not need to be motivated by sexual desire to be unlawful.

Who is Protected from Sexual Harassment in the Workplace?

California’s prohibition against sexual harassment in the workplace protects both male and female employees, applicants, independent contractors, and unpaid interns and volunteers. It applies to all cases of sexual harassment including “same gender” harassment, or “other gender” harassment. The Fair Employment and Housing Act also protects covered individuals from harassment because of their “gender identity” or “gender expression”.

What Constitutes Sexual Harassment?

California and federal law have traditionally recognized two forms of sexual harassment: 1) quid pro quo harassment; and 2) hostile work environment harassment.

Quid Pro Quo

Quid pro quo harassment occurs when an employment benefit (such as being hired or promoted) or the absence of a job detriment (such as being demoted or terminated) is conditioned, expressly, or impliedly on the submission to unwelcome conduct. To prevail on a cause of action for quid pro quo sexual harassment the plaintiff must prove that a supervisor explicitly, or implicitly conditioned a job benefit, or absence of detriment on the plaintiff’s acceptance of unwelcome sexual conduct. The conduct has to be based on sex. As one court put it, it includes things like “sexual propositions, unwarranted graphic discussion of sexual acts, and commentary on the employee’s body and the sexual uses to which it could be put.” The conduct must be unwelcome meaning conduct that the employee did not solicit or incite and that the employee subjectively regarded as undesirable, or offensive.

Hostile Work Environment

Hostile work environment harassment occurs when the plaintiff’s work environment is made hostile or abusive by sexual conduct. To prove a case of hostile work environment harassment, the plaintiff must prove:

  • She or he was subjected to verbal or physical conduct of a sexual nature;
  • The conduct was unwelcome; and
  • The conduct was sufficiently severe, or pervasive to alter the conditions of the plaintiff’s employment and create an abusive working environment.

Put another way by a court: “the sexually harassing conduct sufficiently offends, humiliates, distresses or intrudes upon its victim, so as to disrupt her emotional tranquility in the workplace, affect her ability to perform her job as usual, or otherwise interferes with and undermines her personal sense of well-being.”
The plaintiff must show that a reasonable person in plaintiff’s position would find the environment abusive and the plaintiff in fact found the environment abusive. A judge or jury will consider the totality of the circumstances such as:

  • The frequency of the conduct;
  • The severity of the conduct;
  • Whether the conduct was physically threatening or humiliating or was a mere offensive utterance; and
  • Whether the conduct unreasonably interfered with the plaintiff’s work performance, although the plaintiff need not show that she or he could perform the job.

For example, a co-worker asking you out on a date, is probably not severe or pervasive enough to constitute a hostile work environment. A co-worker asking you out every day for a year, is probably pervasive enough to constitute a hostile work environment. A co-working asking if he could kiss you is probably not severe enough to constitute a hostile work environment. A supervisor forcibly kissing you is probably severe enough to constitute a hostile work environment.

The harassment doesn’t necessarily need to be directed at the plaintiff either. There is the so-called “paramour preference”, whereby a supervisor gives preferential treatment to a sexual partner, thus creating a hostile work environment for those who don’t have a sexual relationship with the supervisor. There are also claims where the conduct is not directed at the plaintiff, but the conduct occurs in the plaintiff’s presence. It’s possible to recover on both theories. But, if it’s not directed at the plaintiff, it will probably be considered less severe and less pervasive so the plaintiff then has an even higher showing.

Who Can Be Liable for Sexual Harassment?

FEHA extends liability for sexual harassment to:

  • Employers;
  • Labor organizations;
  • Employment agencies;
  • Apprenticeship training programs; and/or
  • Any other person.

One quirk is that generally nonprofit, religious associations or corporations are not considered employers under the FEHA. But, these groups are considered employers with respect to their employees who provide services at a healthcare facility operated by the religious organization.

Also, who is harassing you makes all the difference. Employers are strictly liable for harassment by their supervisors or agents. Supervisors are people who have the authority to hire, or fire, or transfer or make effective recommendations to those ends. Agents are people who represent the employer in dealing with a third party. It’s a little different for co-workers. An employer is liable for the sexual harassment of a coworker only if the employer knew, or should have known of the harassment, and failed to take immediate, appropriate corrective action.

The #MeToo movement helped expose how pervasive sexual harassment in the workplace is. You are not alone. If you believe you have been the victim of sexual harassment, you can have your case evaluated by an experienced employment attorney.

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