What Constitutes Sexual Harassment In California

Sexual Harassment Defined

The law defines sexual harassment as "unwelcome verbal, visual or physical conduct of a sexual nature that is severe or pervasive and affects working conditions or creates a hostile work environment."

  • Unwelcome: In order for a victim to have a viable claim for sexual harassment, that harassment must be unwelcome. Another standard that applies to the unwelcome requirement is that the harassing conduct must be offensive. Moreover, the victim must make it clear to the harasser that he or she wants the harassment to stop. If a victim fails to meet these requirements, the chances of winning a lawsuit are poor.
  • Conduct of a sexual nature: Conduct that equates to sexual harassment can take many forms, such as texting sexual messages to the victim, having porn on the harasser's computer screen, sexual jokes or sexual pictures, comments of a sexual nature, repeated requests for dates, unwanted touching or hugging, kissing or attempted kissing, brushing up against the victim's body, touching of sexual body parts, etc.
  • Severe or pervasive: The law also requires that the behavior by the harasser needs to occur for a significant length of time if the harassment is of a lower degree, such as comments like "you look nice today" or "I like the way you smell." But if the conduct is extremely severe, such as sexual assault or of course rape, it only needs to happen once.
  • Affects working conditions or creates a hostile working environment: The mere fact that the victim is being sexually harassed at work is enough to prove that the victim's working conditions were affected. If the conduct is repeated or severe, that is enough to satisfy the hostile work environment requirement. Of course, if the victim is retaliated against by losing his or her job, being demoted, or some other "adverse employment action" is taken against him or her, that certainly meets the requirement of affecting the working conditions, as well as giving rise to a claim for retaliation. A sexual harassment claim coupled with retaliation is an extremely serious matter.

Sexual Harassment Categories

There are two categories of sexual harassment:

  • Quid pro quo harassment: When a supervisor or manager, or someone in an even higher position, predicates the victim's employment on sexual favors or threatens that a victim's career will suffer if he or she does not engage in certain sexual activities, such as dating or sexual acts, that is quid pro quo harassment. A victim who has had this type of harassment forced on him or her may show that the harasser engaged in similar conduct before and therefore the employer must have known of the harasser's propensity to commit acts of sexual harassment, and as such the employer is liable for the harasser's sexually harassing conduct.
  • Hostile work environment harassment: Harassment that is widespread in the workplace with sexual behaviors that are so intimidating or humiliating that it makes it difficult for employees to work constitutes a hostile work environment.

Sexual Harassment Laws

Both California and federal laws make sexual harassment in the workplace illegal. Federal and California law impose the responsibility of preventing or stopping sexual harassment in the workplace on private employers, most public employers, and employment agencies. The law requires employers to take reasonable steps to prevent sexual harassment and to stop sexual harassment that the employer learns about. The employer must immediately stop the continuation of the sexual harassment once they know about it. That is referred to as taking immediate "remedial measures." That is why it is so important for a victim of sexual harassment to immediately report any sexual harassment to the company, so they can put a stop to it. If a supervisor or another employee in a higher position has engaged in sexual harassment, the company is strictly liable for that person's sexually harassing conduct. Having a policy against sexual harassment usually is not enough for an employer to establish in a legal proceeding that it took reasonable steps to prevent sexual harassment in the workplace. One of the biggest mistakes employers make in sexual harassment cases is not immediately investigating a report of sexual harassment. The employer should have the harassment investigation done by an independent party, such as Human Resources or an outside investigator, such as a lawyer skilled in sexual harassment investigations. Another big mistake employers make is doing nothing to immediately prevent sexual harassment from continuing. All too often the employer sticks its head in the sand hoping the problem will just go away, meanwhile the harassment continues and the problem only gets worse for the victim and the company. Acting immediately, both the victim and the company, is critical.

Of course victims of sexual harassment have legal recourse. A sexually harassed employee may bring a lawsuit for damages such as lost wages, emotional distress, attorneys' fees, and sometimes punitive damages. In order for an employee to be able to file a lawsuit in court, she must first obtain a Right To Sue Letter from either the Equal Employment Opportunity Commission (EEOC) or the California Department of Fair Employment and Housing (DFEH). But in order to be able to get a Right To Sue Letter, the victim must first file a complaint with the EEOC (sometimes referred to as a charge) within 300 days from the date of sexual harassment, or with the DFEH within one year of the harassment.

By: Arthur Navarette, Esq.
December 6, 2012