What is Sexual Harassment Under California Law?

There are two different kinds of workplace sexual harassment:

1. Hostile Work Environment, and
2. quid pro quo sexual harassment

The California law that protects employees from sexual harassment in California is the Fair Housing and Employment Act or “FEHA,” which can be found at California Government Code Section 12940.

Not all “sexual” conduct in the workplace is considered harassment under the law. To be harassing the conduct must be unwelcomed. California law defines sexually harassing conduct as “unwanted sexual advances, or visual, verbal or physical conduct of a sexual nature.”

What Is “Hostile Work Environment” Sexual Harassment?

Hostile work environment sexual harassment is the most common form of sexual harassment.

Under the law, a hostile work environment occurs when the following conditions occur:

1. The employee is the subject of unwelcomed advances, comments or other conduct;
2. The employee is the subject of unwelcomed advances, comments or other conduct;
3. The employee is the subject of unwelcomed advances, comments or other conduct;

Harassing conduct can take many forms and may include:

• Sexual comments, jokes or name calling;
• Sending sexually explicit emails or text messages;
• The showing or sending of pornographic images or videos;
• Requests that the employee engage in sexual conduct;
• Requests that the employee spend time with or “date” the harasser;
• Unwanted touching;
• Leering or staring; and
• Comments about your appearance, body, or dress.

Hostile work environment sexual harassment may be committed by any employee against any other employee, regardless of their role within the company and their sex.

Liability for hostile work environment sexual harassment focuses on two factors:

1. The severity of the harassment; and
2. The pervasiveness of the harassment.

A court will look at all of the circumstances to determine whether conduct rises to the level of a hostile work environment. The more severe the harassment, the less pervasive or frequent it must be. The opposite is also true. The less severe the harassment, the more pervasive it must be before a legal claim will arise.

As courts have ruled, to rise to the level of hostile work environment harassment, the conduct must be more than occasional, isolated, sporadic or trivial.

What Is “Quid Pro Quo” Sexual Harassment?

Quid pro quo is a Latin term that translates as “this for that” and implies a transaction or economic exchange. In the context of workplace harassment, “quid pro quo” refers to circumstances where a supervisor requires an applicant or employee to engage in sexual conduct to obtain a workplace benefit.

To prove quid pro quo sexual harassment, the employee must demonstrate that:

1. She was an employee of the defendant, applied for a job, or provided services;
2. A supervisor or other representative of the employer made unwanted sexual advances or engaged in other sexual conduct toward the employee;
3. Obtaining a favorable working condition was made contingent, by words or insinuation, on those sexual requests; and
4. The worker was harmed by the harassing conduct.

Quid pro quo sexual harassment involves a request that the employee or applicant perform a sexual act to obtain a work-related benefit.

The offered benefit can take many forms, such as:

• A new job;
• Not losing your job;
• Better or more favorable hours;
• A raise;
• A promotion;
• A favorable project or assignment

The quid pro quo “exchange” can be either explicit or implied. Either way, there must be negative consequences for refusing. To amount to quid pro quo sexual harassment, a supervisor who makes a threat if the employee refuses sexual advances must actually follow through with the threat.

If the supervisor does not follow through, there is no quid pro quo harassment. That said, even if the threat is not carried out, the conduct may still constitute hostile work environment sex harassment.

Who Can Commit Workplace Sexual Harassment?

Workplace sexual harassment can be committed by a variety of people in and around the workplace.

A harasser may be a:

• Supervisor or boss;
• Coworker;
• Company owner;
• Customer;
• Client;
• Vendor; or
• Independent contractor.

Sexual harassment may be caused by practically anyone associated with the employer and need not be a supervisor. Harassment may be caused by a coworker or even a customer of the business.

Sexual Harassment by a Supervisor or Boss

When workplace harassment is committed by the victim’s supervisor or boss the consequences for the company may be very serious, regardless of whether the company itself acted appropriately to prevent harassment or to stop it.

This is because the law holds an employer strictly liable for harm committed by a supervisor. Strict liability means that the employer is automatically liable for any harm committed by the supervisor, because the supervisor is considered to act on behalf of the company itself.

Under the strict liability rule, when a supervisor does the harassing, the employer will be liable for the harassment even if the harassment is not reported and even if the employer did everything possible to prevent the harassment or to stop it.

Sexual Harassment by a Coworker

Sexual harassment often occurs between coworkers. Because coworkers, or fellow employees generally do not have power over one another, they are seldom capable of committing quid pro quo sexual harassment. However, coworkers can be responsible for creating a hostile work environment though harassing conduct.

When the harasser is a coworker, the employer will be liable for damages only if it is negligent in failing to prevent it. Generally, for the employer to be liable, the victim of harassment must show:

1. The employer knew or should have known about the harassment; and
2. The employer failed to take appropriate corrective action to stop it.

If the employer is not negligent in failing to prevent or stop the harassment, it will not be liable. However, the individual who committed the harassing conduct will still be liable.

Customers, Independent Contractors, and Vendors

Even people who are not employees or owners of the company can still create a hostile work environment by engaging in harassing conduct.

Non-employees who can commit sexual harassment include:

• Customers and/or clients;
• Independent contractors; and
• Vendors and service providers or their employees.

The standard for holding an employer liable for harassment by a third-party is the same as for harassment by a coworker.

To be liable, the employer must:

1. Have known or should have known about the harassment; and
2. Fail to take appropriate corrective action to stop it.

As with coworker harassment, even if it is not possible to prove that the employer was negligent, the third party will still be liable.

Harassment Between Members of the Same Sex

Sex harassment can be committed by members of the same gender. California law recognizes that male on male and female on female sexual harassment does occur and is actionable just like sexual harassment by a member of the opposite sex.

Harassment related to an employee’s sexual orientation is also unlawful and can be pursued in a lawsuit just like traditional sex harassment claim.

The Employer’s Obligation to Maintain a Safe Work Environment

Employers in California have an obligation to employees to maintain a safe working environment. Employers can be held liable for sexual harassment, just as the harasser can be held responsible.

Under California law, employers are required to:

• Take reasonable steps to prevent harassment.
• Display a poster provided by the Department of Fair Employment and Housing (DFEH), which contains key information about sexual harassment.
• Provide employees with information about sexual harassment. They may distribute a DFEH-provided brochure or develop their own equivalent document.
• Provide at least two hours of sexual harassment training to employees in supervisory positions. This mandate is only required of businesses with 50 or more employees.

Who Can File a Sexual Harassment Lawsuit?

California law allows any person who has been harassed in the workplace to file a lawsuit for damages. To file a lawsuit, you do not necessarily have to be an employee.

The following individuals have standing to sue for sexual harassment:

• Employees;
• Unpaid and paid interns;
• Independent contractors; and
• Volunteers.

The Statute of Limitation for Sexual Harassment

If you are the victim of workplace sexual harassment, you should contact an experienced employment lawyer immediately. Claims for sexual harassment are subject to statutes of limitation, which require that certain actions be taken within a period of time or the claim is lost.

Because sexual harassment claims are made under the Fair Employment and Housing Act or “FEHA,” an employee must first make an administrative filing and receive a “right to sue letter” before filing a lawsuit.

The administrative filing may be made to one of the following two agencies:

1. The California Department of Fair Employment and Housing (DFEH)
2. The federal Equal Employment Opportunity Commission (EEOC)

The statute of limitations for making an administrative filing varies based on the agency:

• Three years to file a claim with the DFEH
• 180 days to file a claim with the EEOC

Once the employee received a right to sue letter from an administrative agency, he or she has one year to file a lawsuit. A lawyer can help you obtain a right to sue letter promptly.

Employees Who Experience Sexual Harassment

It is important for employees to make clear that the sexual advances or other sexually-charged behavior is unwanted. Firmly tell the offending co-worker that his behavior is inappropriate and should stop. It is also a good idea to write down a record of each instance of harassment and to notify the employer as soon as possible.

See other important steps to take if you are being sexually harassed.

Contact a California Workplace Sexual Harassment Lawyer For Help

If you have been the victim of workplace sexual harassment, you may be entitled to file a claim.

Contact our experienced sexual harassment lawyers at the Law Offices of Corbett H. Williams for a free, confidential consultation today by sending us an online message or calling (949) 401-7547.