Sexual Harassment Lawyer

Sexual Harassment Overview

There are two sources of law for sexual harassment in California: (1) for state, the California Fair Employment and Housing Act (FEHA); and (2) for federal, Title VII of the Civil Rights Act of 1964.

California Fair Employment and Housing Act (FEHA)

California Government Code section 12940(j)(1) specifically makes it unlawful for an employer to harass an employee based on sex (among other categories such as race, creed, religion, sexual orientation, etc.). This statute lists situations where an employer will be held liable:

1. If the employer, or its agents or supervisors, knew or should have known of the harassing conduct in question, and failed to take immediate and appropriate corrective action.
2. If the employer, or its agents or supervisors, knew or should have known of a nonemployee’s harassing conduct in question, and failed to take immediate and appropriate corrective action. In short, an employer can be held liable even for the harassing conduct of nonemployees if that nonemployee’s actions took place pursuant to an employee’s contract in the workplace.

But note, the courts will take into consideration the extent of the employer’s control and legal responsibility over the harassing entity. It is incumbent on the employer to take reasonable steps to prevent harassment from occurring.

California Government Code section 12940(4)(C) identifies “harassment” to include sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions. The conduct does not have to originate from sexual desire.

Title VII of the Civil Rights Act of 1964

Title VII makes it unlawful to discriminate against a person based on his or her sex.

Generally, FEHA provides greater protection for employees than Title VII and as such, California employees will seek relief under FEHA.

Note on California Constitution Article 1, Section 8

The California Constitution’s prohibits employment discrimination because of sex. Again, FEHA provides greater protection and as such, it is rare for a California employee to seek relief under the California Constitution.

Two Forms of Sexual Harassment

California recognizes two forms of sexual harassment: (1) quid pro quo sexual harassment; and (2) hostile work environment sexual harassment.

Quid Pro Quo Sexual Harassment

“Quid pro quo” means “something for something.” Quid pro quo sexual harassment is when an employer, or its agents or supervisors, offers something for sexual favors.

Examples

• Manager Mike tells Employee Emily, “Go on a date with me or you’ll find yourself working all the graveyard shifts.”
• Manager Mike tells Employee Emily, “Sleep with me and I’ll put you on the fast track for supervisor and a hefty raise.”

As you can see from the above examples, these sexual favors can result in adverse employment action or a benefit to the employee. Regardless of whether the harassed party refuses or submits to the behavior, it is unlawful. Quid pro quo can be expressed or implied. The slightest of hints or innuendo can make an employer liable if a reasonable person would view the conduct as a threat or demand.

Hostile Work Environment Sexual Harassment

Hostile work environment sexual harassment occurs when an employer’s unwanted sexual conduct causes an employee’s work environment to become intimidating and/or the employee’s work performance suffers. Factors to be considered are: nature of the conduct, frequency of the conduct, and the context of the conduct.

Examples

• Every time Manager Mike passes Employee Emily, he gropes her butt and tells her, “Great job!” Emily, who was with other co-workers, is very embarrassed and notices throughout the month that her co-workers frequently whisper and glare at her. Emily is now afraid to leave her cubicle because of the hostile work environment.
• Supervisor Samantha and Intern Ian frequently work on projects together and they are a great team. Recently, Supervisor Samantha started placing her hand on Ian’s hands, giving him shoulder massages, and telling him how great he looks in a tie. Ian, who really wants to work at this company, is too afraid to reject Samantha’s unwanted conduct. In the weeks following, Ian’s work performance noticeably decreases because of his discomfort with Samantha.
• Big Boss Ben holds weekly team meetings, so he can get updates from his employees. During these meetings, Ben consistently makes dirty jokes and lewd comments regarding the female employees in the office. Because of Ben’s conduct, the female employees started making all kinds of excuses not to show up to these meetings.

For hostile work environment, a single incident of harassment is enough if it is so severe and pervasive that it created a hostile work environment. The harassing conduct must be to the point that it “unreasonably interfered” with an employee’s work environment or created an intimidating, hostile, or offensive working environment. An employee does not need to show that his or her work performance decreased. An employee is only required to show that the harassing party’s conduct made his or her job “more difficult.”

As seen in the examples above, a hostile work environment claim can result from uninvolved parties. In employee Emily’s case, Manager Mike’s unwanted sexual advances caused Emily’s co-workers to be hostile toward her. In Big Boss Ben’s case, a female employee, who witnesses the impact of Ben’s conduct toward other female employees, can bring a hostile work environment claim.

Types of Verbal/Physical Conduct Constituting Sexual Harassment

• Sexual, lewd, or vulgar comments or jokes (in person or electronically).
• Unwanted inappropriate touching, groping, or contact.
• Invasion of personal space or blocking movements.
• Staring at an employee in a sexual manner.
• Requests for dates or sexual favors.
• Posting or circulating sexual images at work.
• Emailing or watching pornography at work.

Liability

In California, an employer is strictly liable for sexual harassment if it comes from its agents or supervisors. An employer can also be held strictly liable for a nonemployee’s sexual harassment if that harassment was in the course of the employee’s duties and the employer knew or should have known about it. In both instances, once an employer knows of such conduct, the employer must take immediate action and take affirmative steps to correct the behavior.

Employer’s Duty to Investigate Sexual Harassment

Under California and federal law, an employer has a duty to investigate all claims of sexual harassment. Failure or negligence in doing so can result in liability for the employer.