What is Considered Sexual Harassment in California?
Sexual harassment at work is prohibited in California under California Government Code section 12940(j). Sexual harassment in the workplace can take many forms and isn’t always easy to identify. In general, there are two types of workplace sexual harassment – quid pro quo harassment and hostile work environment harassment.[note] Beyda v. City of Los Angeles (1998) 65 CA4th 511, 516. [/note]
Quid Pro Quo Sexual Harassment
The first type is very rare in modern workplaces. Qui pro quo generally means “this for that.” The classic example of qui pro quo harassment is a boss who says to an employee: “I’ll give you a raise if you have sex with me” or “I’ll promote you if you go out with me.” The essence of the quid pro quo theory of sexual harassment is that a supervisor uses his or her apparent or actual authority to extort sexual favors or a sexual relationship from an employee.[note] Henson v. City of Dundee (11th Cir 1982) 682 F2d 897, 910. [/note] The typical example of this type of sexual harassment involves some form of sexual request or proposition coupled with an express or implied threat that if the employee refuses, then he or she will be written up, demoted or terminated. In the alternative scenario, the employee is offered better treatment, such as a promotion or pay increase if they submit to the sexual advance. [note] Holly D. v. California Inst. of Technology (9th Cir. 2003), 339 F.3d 1158. [/note]
Below are a few actual examples of qui pro quo sexual harassment in the workplace:
- A female employee was asked to lunch by her boss to discuss the employee’s upcoming performance evaluation and possible promotion. During lunch, the male boss told the female employee that her continued success and advancement at the company was dependent on her agreeing to his sexual demands.[note] Tomkins v. Public Service Elec. & Gas Co. (3rd Cir. 1977) 568 F2d 1044, 1047. [/note]
- When a female employee reacted negatively to her supervisor’s sexual comments and jokes at work, her supervisor gave her a poor performance evaluation. After that, she felt that if she wanted to keep her job she “would have to comply” with her supervisor’s requests for sex from her, which she did. The court said that is a reasonable women in the employee’s position would have felt that she needed to agree to sex with her supervisor in order to keep her job, then she was entitled to win her case.[note] Holly D. v. California Inst. of Technology (9th Cir. 2003) 339 F3d 1158, 1175-1176. [/note]
Hostile Work Environment Harassment
Hostile work environment harassment occurs when sexual comments, actions, or conduct unreasonably interfere with an individual’s work performance or create an intimidating, hostile or offensive working environment. [note] Meritor Sav. Bank, FSB v. Vinson (1986) 477 U.S. 57, 65. [/note]
To win a case based on the “hostile work environment” theory of sexual harassment, the victim must prove the following:
(1) That he/she was subjected to unwelcome sexual advances, conduct, or comments;
(2) That the harassing conduct was based on the sex of the victim; and
(3) That the harassment was “so severe or pervasive” as to “alter the conditions of the victim’s employment and create an abusive working environment.”[note] Meritor Sav. Bank, FSB v. Vinson (1986) 477 US 57, 67; Fisher v. San Pedro Peninsula Hosp. (1989) 214 CA3d 590, 608; Thompson v. City of Monrovia (2010) 186 CA4th 860, 876. [/note]
Notice, the conduct at issue must be either (1) severe or (2) pervasive, and not both. [note] Harvill v. Westward Communications, LLC, (5th Cir. 2005) 433 F3d 428, 435. [/note] The rationale for this is that an employee who is subjected to a limited number of severe incidents of sexual harassment need not stay in the harassing work environment in order to maintain a claim for sexual harassment. Conversely, where the harassment is less severe, but more frequent, the employee may still pursue a claim – even where those incidents in isolation may be insufficient for a claim of harassment.[note] Faragher v. City of Boca Raton (1998) 524 US 775, 787. [/note]
Can a single harassing incident ever enough to create a claim for hostile work environment sexual harassment?
Yes. A single incident of harassment can be sufficient to give rise to a claim for hostile work environment harassment depending on the severity of the incident. For example, a single incident in which the harasser gropes or grabs the victim is sufficiently severe to constitute harassment.[note] Myers v. Trendwest Resorts, Inc. (2007) 148 CA4th 1403, 1421. [/note] Similarly, a single incident in which the harasser physically assaults or threatens to physically assault the victim has been held to be harassment in California.[note] Hughes v. Pair (2009) 46 CA4th 1035, 1043. [/note]
Can an employee pursue a claim for harassment when the harassing words or conduct is directed at other employees?
Yes. An employee may be a victim of sexual harassment even if the harassing words or conduct was not directed at the employee, but to others in the workplace. This type of “by-stander” harassment is generally considered less severe and offensive than harassment directed at the employee and, therefore, generally requires additional proof.[note] Lyle v. Warner Bros. Television Productions (2006) 38 C4th 264, 284-285. [/note] To prove a claim for hostile work environment harassment based on conduct or offensive remarks directed at others, the plaintiff must show that the harassment “permeated her direct work environment”. [note] Id. [/note] This means that the harassment must have taken place in the plaintiff’s immediate work environment and she must have personally witnessed the harassment – rather than hearing about it through hearsay or workplace gossip.[note] Id. at 285; Beyda v. City of Los Angeles (1998) 65 CA4th 511, 521. [/note]
Can an employee still sue for sexual harassment if they voluntarily had sex with his or her boss?
Yes. The fact that an employee’s sexual acts or relationship with a co-worker or supervisor was not voluntary, i.e., not physically forced upon them, does not mean that the employee has no claim. Instead, the issue is whether the advances were “unwelcome” and not whether the employee ultimately submitted to those advances. In other words, there is still a claim for sexual harassment even where the employee submits to the sexual advances so long as the advances themselves were “unwelcome” to begin with.[note] Meritor Sav. Bank, FSB v. Vinson (1986) 477 U.S. 57, 65. [/note]
Can a male employee be sexually harassed by a female?
Yes. In a sexual harassment case, the issue is not whether the victim is male or female. The issue is whether members of one sex are exposed to disadvantageous working conditions that the opposite sex are not exposed to.[note] Oncale v. Sundowner Offshore Services, Inc. (1998) 523 US 75, 81.[/note] Therefore, unwelcome sexual advances by a female supervisor to a male employee gives rise to a claim for sexual harassment as the same as when genders are reversed.[note] Oncale v. Sundowner Offshore Services, Inc. (1998) 523 US 75, 81; Huebschen v. Department of Health & Social Services (7th Cir. 1983) 716 F2d 1167, 1170. [/note]
Can a man be sexually harassed by a man? Can a woman be sexually harassed by a woman?
Yes to both. Again, the key is whether the sexual advances are “unwelcome”. In the case of same-sex harassment, as long as the sexual advances to the member of the same sex are unwelcome, a claim for sexual harassment can be brought.[note] Oncale v. Sundowner Offshore Services, Inc. (1998) 523 US 75, 79; EEOC v. Boh Bros. Const. Co., L.L.C. (5th Cir. 2013) 731 F.3d 444, 454 & fn 4; Singleton v. United States Gypsum Co. (2006) 140 CA4th 1547, 1557. [/note]
Can there be a sexual harassment claim where a supervisor solicits sex from both male and female employees?
Typically, no. This type of harasser is known as an “equal-opportunity” harasser because they do not harass based on the sex of the victim. Instead, they harass regardless of sex. In that type of case because the harassment is not based on the sex of the victim, the harasser is not liable for sexual harassment.[note] Holman v. State of Indiana (7th Cir. 2000) 211 F3d 399, 403. [/note]
That said, just because male and female coworkers are both subjected to the same sexually offensive environment at work does not mean that the harassment is not more offensive or harsh to a particular gender. Where the offensive work environment is harsher to a particular sex, then a claim for sexual harassment can be brought even though both male and female workers were subjected to it.[note] Petrosino v. Bell Atlantic (2nd Cir 2004) 385 F3d 210, 221. [/note] Therefore, if a reasonable jury could find that the demeaning conduct was more demeaning to one gender than another, then there is a claim for sexual harassment.[note] Id. [/note]
If you feel that you’ve been a victim of sexual harassment at work, the California employment attorneys at Petronelli Law Group are here to help and to answer any questions you may have about your rights under California employment law.
