The short answer for what constitutes sexual harassment at work in California is any unwelcome sexual advances, requests for sexual favors, or other verbal, physical, or visual conduct of a sexual nature when:
- Submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment,
- Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting that individual, or
- The conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.
You may feel defeated and alone after you experience sexual harassment in the workplace. At Boucher LLP, our experienced attorneys are here to help you feel empowered to seek justice and end unlawful employment practices.
To enable you to stand up and get your life back, you first need to be informed about what conduct constitutes sexual harassment in the workplace.
California sexual harassment laws are some of the most pro-employee laws in the country. However, they remain complex and challenging to navigate.
Sexual Harassment in the Workplace Is Against the Law in California
Sexual harassment at work in California is unlawful.
The California Fair Employment and Housing Act (FEHA) makes sexual harassment against an employee, applicant, unpaid intern, volunteer, or independent contractor an unlawful employment practice. The FEHA prohibits harassment in all workplaces, regardless of size.
In addition, the FEHA prohibits discrimination based on marital status, sex, gender, gender identity, gender expression, age, sexual orientation, and pregnancy, childbirth, or related medical conditions.
Thus, sexual harassment is sex discrimination even if not motivated by sexual desire.
Further, the FEHA requires employers to “take all reasonable steps necessary to prevent discrimination and harassment from occurring.”
Thus, California employers have a specific responsibility to prevent harassment from managers, supervisors, co-employees, and third parties.
When a manager, supervisor, or agent of the employer commits unlawful harassment, the employer is strictly liable for the harm.
However, before an employer is held liable for harassment from a co-worker or third party, the employer must have known or should have known of the harassment and failed to take immediate and appropriate corrective action.
Regardless of whether an employer has liability, the harasser always has personal responsibility for their behavior.
What Is Workplace Sexual Harassment?
The California legal definition of sexual harassment includes unwanted sexual advances and verbal, physical, and visual conduct of a sexual nature.
It includes harassment of a person of the same or different gender as the harasser. Unlike other forms of harassment, the victim does not need to experience a loss of tangible job benefits.
Instead, the law defines two types of sexual harassment with separate legal elements.
Quid Pro Quo Sexual Harassment
“Quid pro quo” translates from Latin to “this for that.” This type of harassment occurs when someone with authority or influence demands a sexual favor in exchange for the promise or threat to grant or withhold a benefit.
This can be a promise for a promotion, a title or position in the company, a raise, or continued employment. The threat or promise can be implied or expressed, but the person making it must have the authority to carry it out.
When committed in the workplace, quid pro quo harassment might look like this:
- A manager threatening a bad performance review if an employee denies their request for a date;
- A boss threatening to transfer an employee unless they accept sexual advances; or
- A supervisor offers a raise to an employee in exchange for sexual favors.
Quid pro quo harassment is the most obvious form of harassment because there is a request for a sexual favor. The sexual favor does not have to be intercourse.
Unwanted sexual advances, inappropriate discussions of graphic sexual acts, or commentary on the employee’s body and potential sexual uses are all quid pro quo harassment.
Hostile Work Environment Sexual Harassment
Hostile workplace sexual harassment occurs when the behavior is unwanted and severe or pervasive enough to create an abusive work environment.
To qualify as sexual harassment, the unwelcome comments or conduct based on sex must “unreasonably interfere with an employee’s work performance or create an intimidating, hostile, or offensive work environment.”
Examples of hostile sexual harassment in the workplace includes conduct like:
- A supervisor giving employees back massages without consent;
- Consistent or repeated bumping, pushing, or blocking of an employee’s path;
- Hanging sexually explicit posters, calendars, or photos in the workplace;
- Telling offensive jokes or intimidating, threatening, or routine teasing that goes beyond being rude or casual humor; and
- Flirting, winking, leering, staring, whistling, or obviously “checking out” a co-worker.
Before offensive conduct in the workplace violates the law, the harassment must be subjectively and objectively offensive.
Objectively offensive conduct means that any reasonable person in the harassed person’s situation would find the situation hostile, abusive, or objectionable.
To be subjectively offensive, the conduct must have subjected the person to emotional stress that interfered with their well-being or ability to perform their job.
Typically, this means that the harasser had a pattern of conduct or repeated the behavior to cause harm. However, one serious violation (such as rape or physical assault) is sufficient to establish a hostile work environment and sexual harassment.
Examples of What Constitutes Harassment at Work in California
California’s Department of Fair Employment and Housing lists several types of conduct that constitutes unlawful sexual harassment:
- Verbal harassment—epithets, derogatory remarks, or slurs based on the employee’s protected characteristics;
- Physical harassment—assault, impeding or blocking movement, or any physical interference with normal work or movement, when directed at an employee because of a protected characteristic;
- Visual forms of harassment—derogatory posters, cartoons, or drawings that are offensive to a protected class; or
- Sexual favors—unwanted sexual advances that make an employment benefit contingent on the exchange of sexual favors.
Many of these behaviors might seem normal or entrenched in the company culture. However, it is unlawful if the offensive conduct creates an intolerable workplace.
If an employee feels forced to resign because of the behavior, it is unlawful sexual harassment.
Boucher LLP: An Experienced Team of Attorneys Working for You
In sexual harassment cases, it is often one person’s word against another, usually a person of power.
Although speaking out is not always easy, the lawyers at Boucher LLP have extensive experience helping victims of sexual harassment get justice and put an end to predatory behavior.
California’s laws protect people from unwanted harassment, and you deserve the chance to stand up for yourself. While sexual harassment victims are often ignored or brushed aside, our attorneys won’t let that happen to you.
Still have questions about what constitutes sexual harassment at work in California? We are here to listen and compassionately explain your options. Contact us online or give us a call at 818-340-5400.