Sexual harassment in the workplace is either: (1) comments or conduct that create an intimidating, hostile, or offensive work environment, and are based on sex; or (2) when an employee is pressured to submit to sexual advances as a condition of their employment.
The first example above is called “hostile work environment” sexual harassment. In my experience, this is the most common form of sexual harassment.
The second example above is called “quid pro quo” sexual harassment, where a term or benefit of employment is conditioned on an employee submitting to sexual advances.
Both forms of sexual harassment are illegal, because they constitute discrimination based on gender.
Examples of Hostile Work Environment Sex Harassment
Examples of hostile work environment sex harassment include the following:
- Comments about an employee’s appearance;
- Comments about an employee’s attractiveness;
- Discussion of sexual activity;
- Touching an employee;
- Leering;
- Excessive attention being paid to an employee;
- “Jokes” of a sexual nature;
- Sexual gestures;
- Displaying sexual material, such as on a phone or at a workspace;
- Statements of an implied sexual nature;
- Overtly sexual comments;
- Asking to see an employee outside of work;
- Asking about an employee’s private life;
- Over sharing about a person’s private life;
- Initiating unwanted touching or sexual contact of any kind.
Examples of Quid Pro Quo Sex Harassment
Some conduct can create both a hostile work environment, and constitute quid pro quo harassment, such as a supervisor telling an employee that they can get ahead by engaging in sexual activity. In other instances, a supervisor might tell an employee they will be fired if they do not engage in sex, or make it clear that there is “only one way to get ahead”.
Harassment by a supervisor
An employer is liable for sexual harassment committed by a supervisor. That means if an employee is sexually harassed by a supervisor, the employee can sue their employer for that harassment. (State Dept. of Health Services v. Superior Court, 31 Cal.4th 1026 (2003)). (The individual supervisor can be sued as well.)
Harassment by a coworker
However, an employer can also be sued for harassment by a co-worker, and held liable when the employer “know or should have known of this conduct and fail to take immediate and appropriate corrective action” (CA GOVT § 12940).
This is often demonstrated by:
(1) A history of the employee that was harassed making complaints about the harassment, but the employer allowed it to continue;
(2) A history of other employees having made complaints about harassment by the perpetrator, but the employer allowed it to continue; or
(3) Supervisors or managers having witnessed the harassment, and, allowed it to continue.
(The individual harasser can be sued as well.)
When does the conduct become illegal sexual harassment?
The conduct will constitute illegal sexual harassment when it is either: (1) “pervasive” (“more than a few isolated incidents”; or (2) even if it is only a few isolated incidents, then when it is “severe”. (Hughes v. Pair, 46 Cal.4th 1035 (2009)).
California law has a lower requirement than Federal law in establishing illegal sexual harassment. (In California, “A single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment if the harassing conduct has unreasonably interfered with the plaintiff’s work performance or created an intimidating, hostile, or offensive working environment. Cal.Gov.Code § 12923).
Moreover, in 2018, the Legislature amended the law to explicitly state that “sexually harassing conduct need not be motivated by sexual desire” (CA GOVT § 12940). For instance, I handled a case of same-sex harassment in a fire department, even where that harassment was not clearly motivated by sexual desire.
In addition, the law defines harassment because of sex to include “sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions”. (CA GOVT § 12940).
Damages for sexual harassment.
Like other forms of discrimination, Plaintiff’s in sexual harassment cases can sue for emotional distress, lost wages (where applicable), punitive damages, as well as attorney’s fees. These cases are usually brought under the Fair Employment and Housing Act.
Sexual harassment cases are often focused primarily on emotional distress damages, which can extend into the hundreds of thousands, or even millions of dollars.
Important takeaways for California employees
California law has strong protections against sexual harassment, whether that harassment is perpetrated by a supervisor or a co-worker. The employer itself is often liable for the harassment. California state laws are even stronger than Federal law. Attorney Michael Velarde has extensive experience representing employees in sexual harassment cases. You can contact employment law attorney Michael Velarde here.
