Sexual Harassment in the workplace is, unfortunately, still too prevalent. Luckily, both state and federal law in California prohibit such conduct and provide strict laws protecting employees from being subjected to persecution, aggravation, and annoyance based upon sex and gender at the hands of fellow employees, managers and supervisors within the working environment.
Federal Law Prohibits Discrimination, Harassment and Retaliation Based Upon Sex
Title VII of the Civil Rights Act of 1964 makes it unlawful for any employer, “to discriminate against any individual with respect to terms, conditions or privileges of employment because of the … sex of the individual.” Gender is a protected classification where “discrimination” is not lawful and this term has been interpreted to also include harassment and retaliation. In fact, the Equal Employment Opportunity Commission (“EEOC”) has provided guidelines on the federal standards on this subject (See EEOC Guidelines on Sexual Harassment).
California Legal Standards Defining “Sexual Harassment”
The State of California follows the federal standards which prohibit “discrimination” in the “terms or conditions of employment” based upon the sex of the individual employee. (See California Government Code 12940(a)). Likewise, the California Department of Fair Employment and Housing (“FEHA”_ has provided guidelines on CA statutes and case law definitions of sex harassment in the workplace. (See CA DFEH Guidelines). Likewise, California Government Code (j)(1) prohibits “harassment” based upon “sex” or “sexual orientation.” The Golden State also imposes a duty on the part of employers to, “take all reasonable steps necessary to prevent discrimination or harassment” from occurring. (See Cal. Govt. Code 12940(k)).
Although California courts have broadly interpreted what constitutes “harassment” to mean any “adverse employment action” based upon the sex of the employee, traditionally, this has been defined in two categories:
“Quid Pro Quo”: In Latin, this phrase means “something for something” or “a favor for a favor.” In the context of employment law, it is when a supervisor requests sexual favors in exchange for the grant or denial of a job, the extension of benefits, or receiving something favorable such as a good performance evaluation, raise or promotion. In other words:
- the employee is subjected to “unwelcome” sexual advances, conduct or comments by a supervisor with authority over that employee;
- the harassment was based upon sex; and
- the employee’s reaction affected “tangible aspects” of the employment such as “compensation, terms, conditions or privileges of employment.”
The employer of a supervisor who engages in this type of conduct is liable for the actions of that manager whether or not they were aware or should have been aware or were, in any way, negligent in preventing it. The rationale for this “strict liability” is that the supervisor has been “empowered by the company” to make economic decisions and therefore has the employee under his or her control. Burlington Industries, Inc. v. Ellerth (1998) 524 U.S. 742. It should also be noted that “unwelcome” and “voluntary” are not the same under this standard (i.e. if the employee voluntarily consented to a sexual relationship, a claim may still lie of the employee only did so out of fear of losing a job benefit). The harassment can also be between members of the opposite sex or members of the same sex. Furthermore, the supervisor’s suggestion of affecting a “tangible employment action” in exchange for sexual favors can be “express” or “implied”.
Hostile Work Environment: This occurs when the harassing conduct (which can be a combination of verbal or physical and of a sexual or non-sexual nature) has the purpose or effect of creating an offensive working environment. Generally, the elements of such a claim are as follows:
- Employee was subjected to “unwelcome” sexual advances, conduct or comments;
- The harassment complained of was based upon the “sex” of the employee; and
- the harassment was either so “severe” or “pervasive” such that it altered the “conditions of employment” or “working environment.” Meritor Savings Bank FSB v. Vinson (1986) 477 U.S. 57.
Unlike “quid pro quo” harassment, it need not be shown that the employee had a loss or potential loss of job benefits. It is sufficient that the employee was subjected to the conduct. The conduct can be either from supervisors or from coworkers. Under California law, the employer is strictly liable for conduct on the part of a manager or supervisor (i.e. any person with the power to hire or fire, set work schedules, pay rates, or otherwise direct the employee’s daily work activities). If the conduct is by a co-worker, it will need to determined if the employer unreasonably failed to prevent or correct the conduct (i.e. was the employer “negligent” in allowing the conduct to take place or in failing to investigate and/or take corrective action against the offending employee). Factors in determining whether the actions were “severe” or “pervasive” include the following:
- the frequency of the conduct;
- the severity;
- whether it is “physically threatening or humiliating” or just an “offensive utterance”; and
- whether it “unreasonably interferes with an employee’s work performance.
The Need to Consult With A California Sexual Harassment Lawyer
If you have been the subject of harassing conduct at the hands of a manager, supervisor or coworker in the Golden State, it is imperative that you seek competent legal advice from an attorney familiar with CA employment law. Because claims must be analyzed on a case by case basis and standards are subjective and depend upon the facts in any individual situation, consulting with legal counsel can mean the difference between suffering the consequences of the illegal conduct (e.g. the termination of employment for refusing to give in to sexual advances or for complaining about the harassment of a co-employee) or being able to seek justice and be compensated for this type of wrongdoing. For a free case evaluation call the California employment legal helpline toll free at 866-252-0735 !