What is Sexual Harassment?

By Jason Oliver

Sexual harassment is a form of sex discrimination that violates the California Fair Employment and Housing Act also known as FEHA (Government Code §12920 et seq.), and Title VII of the Civil Rights Act of 1964. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitutes sexual harassment when submission to or rejection of this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance or creates an abusive, intimidating, hostile or offensive work environment.

Under Federal law, sexual harassment can be found in a variety of circumstances, including but not limited to the following:

• The victim as well as the harasser may be a woman or a man and does not have to be of the opposite sex.
• The harasser can be the victim's supervisor, an agent of the employer, a supervisor or a co-worker.
• The victim doesn't have to be the person harassed and can be anyone affected by the offensive conduct.
• Unlawful sexual harassment may occur without economic injury to or discharge of the victim.
• The harasser's conduct must be unwelcome.
• In determining whether harassment has occurred under Federal law, one should examine the entirety of the circumstances, such as the nature of the sexual advances, and the context in which the alleged incidents occurred. A determination on the allegations is made from the facts on a case-by-case basis.

Sexual Harassment Under California State Law

The Fair Employment and Housing Act defines harassment because of sex as including sexual harassment, gender harassment and harassment based on pregnancy, childbirth, or related medical conditions. The Fair Employment and Housing Commission regulations define sexual harassment as unwanted sexual advances or visual, verbal or physical conduct of a sexual nature. Sexual harassment includes many forms of offensive behavior and includes harassment of a person who is the same sex as the harasser. Under California law, illegal harassment may include, but is not limited to, the following:

• Unwanted sexual advances;
• Offering employment benefits in exchange for sexual favors;
• Making or threatening reprisals after a negative response to sexual advances;
• Visual conduct, e.g., leering, making sexual gestures, displaying sexually suggestive objects or depictions;
• Verbal conduct, e.g., making or using derogatory comments, epithets, slurs and jokes;
• Verbal sexual advances or propositions;
• Verbal abuse of a sexual nature;
• Graphic verbal commentaries about an individual's body;
• Sexually degrading words used to describe a person; suggestive or obscene letters; notes or invitations;
• Harassment based on gender, such as targeting a person for mistreatment because she is female;
• Physical conduct, such as touching, assault, impeding or blocking movements.

California Law Protects Employees from Discrimination, Harassment and Retaliation.

Under California statutory law, discrimination, harassment, retaliation and an employer's failure to prevent such unlawful practices in connection with employment, are illegal. It is an "unlawful employment practice" for an employer because of the sex of any person (or other protected basis) to: (1) discriminate against the person in compensation or in terms, conditions or privileges of employment; (2) fire or otherwise discriminate against any person for opposing any forbidden practices; and/or (3) aid, assist, compel, or coerce the doing of any forbidden employment practices. In order to valid, sexual harassment must be proven to be either severe or pervasive (it does not need to be both).

The Law Protects Independent Contractors from Sex Harassment.

The law also makes it illegal for an employer, based on sex/gender (or other protected basis), to harass an employee or "person performing services pursuant to a contract."

Sexual Harassment Law Imposes Different Standards Depending on the Context

Harassment by a supervisor is unlawful if the employer knows or should have known of the harassment but fails to take immediate and appropriate corrective action. When the harasser is a supervisor, the employer is strictly liable to the employee. In such a case, the employee is only required to prove the harassment occurred and the amount of damages. If the harasser is not a supervisor, but rather a co-employee, the employee must prove the employer "knew or should have known" the harassment was occurring. Regardless, an employer has a duty to "take all reasonable steps to prevent harassment from occurring."

The Jury Views the Facts from The Perspective of a "Reasonable Person," based on the "Totality of the Circumstances."

Whether the facts of any given case meet this standard is viewed from the perspective of a reasonable person in plaintiff's position. This is sometimes called the "reasonable woman" standard, although it applies to men as well. The work environment is evaluated by considering the "totality of the circumstances." The employer is required to address each bad act in the context of all the other bad acts. A jury may consider the frequency of the harassing or discriminatory conduct, its severity, whether it is physically threatening or humiliating, and whether it unreasonably interferes with an employee's work performance. A view of the events in chronological order enables the jury to see their relationship to one another, and consequently their meaning and significance.

Evidence of Harassment of Others is Usually Considered by the Jury.

Additionally, even though evidence of harassment of others might not be used to prove the employee found his or her workplace subjectively hostile, it is still highly relevant to prove the sexual harassment was severe or pervasive and that he employer knew or should have known of the misconduct. Recently, a California case held that an employee's evidence of the employer's alleged gender bias in the form of harassment of other women employees occurring outside plaintiff's presence and at times other than when plaintiff was employed was properly admissible as evidence of a discriminatory/biased intent or motive by the individual harasser. This is because a reasonable person may be affected by knowledge that other workers are being sexually harassed in the workplace, even if he or she does not personally witness that conduct.

Sexual Harassment Need Not be Motivated by a Desire for Sex.

It is also important to remember that a claim of sexual harassment for a hostile work environment need not have anything to do with sexual advances. For example, an employee who is mistreated because she is a woman (or because he is a man) could potentially have a claim for sexual harassment. An employee may also establish sexual harassment under FEHA by demonstrating that widespread sexual favoritism toward others was severe or pervasive enough to alter the working conditions of the complaining employee and create a hostile work environment.

This is by no means a complete discussion of California's laws pertaining to sexual harassment. Nor is it intended to be legal advice or a discussion of federal law or the law of another state. Always consult an attorney regarding the law and how it may or may not apply to your particular circumstances.

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