The Primary Laws that Define Sexual Harassment in California
California law prohibits sexual harassment of all types in the workplace and goes as far as requiring employers to train supervisors on how to prevent and deal with sexual harassment. At the state level, the California Department of Fair Employment and Housing (DFEH) sets forth and enforces sexual harassment laws. California regulations define sexual harassment as unwanted sexual advances, or visual, verbal or physical conduct of a sexual nature. This definition includes many forms of offensive behavior and includes gender-based harassment of a person of the same sex as the harasser. Prohibited actions include but are not limited to the following behavior:
- Visual conduct: leering, making sexual gestures, displaying of sexually suggestive objects or pictures, cartoons or posters.
- Verbal conduct: making or using derogatory comments, epithets, slurs and jokes. Verbal abuse of a sexual nature, graphic verbal commentaries about an individual's body, sexually degrading words used to describe an individual.
- Physical conduct: touching, assault, impeding or blocking movements.
- Offering employment benefits in exchange for sexual favors.
- Making or threatening retaliatory action after receiving a negative response to sexual advances.
Quid Pro Quo vs. Hostile Work Environment
Under the California Fair Employment and Housing Act, sexual harassment in employment takes two forms: quid pro quo (literally, “something for something”) harassment and hostile work environment harassment.
Quid Pro Quo Harassment
Quid pro quo harassment occurs when a supervisor requires a subordinate to submit to sexual advances by threatening the subordinate with an adverse employment action, such as a bad review, demotion, or termination. These kinds of situations can be expressly communicated or implied, and usually take one of two forms:
- An offer – The employer or supervisor offers a job benefit—like a raise or a promotion—in exchange for some kind of sexual conduct on the part of the employee.
- A threat – The employer or supervisor makes a threat of a work-related punishment—like a demotion, pay reduction, or termination—unless the employee gives in to the employer or supervisor's sexual demands.
The threat or offer can be either express or implied, meaning the mere discussion of sexual acts or behavior that could lead to sexual acts can suggest an offer or threat.
Quid pro quo harassment can only be committed by a supervisor, manager, or another employee who is in a position to take some tangible employment action against the victim. Coworkers who are on equal footing and who demand sexual favors are not engaging in quid pro quo harassment. However, they may be responsible for creating a hostile work environment as described below.
Hostile Work Environment
Hostile work environment sexual harassment occurs when the victim's work environment is made hostile, offensive, oppressive, intimidating, or abusive due to repeated “pervasive” sexual harassment. Unlike quid pro quo harassment, any employee can create a hostile work environment. Because conduct must be “pervasive,” there usually must be more than one instance of unlawful conduct to create a hostile work environment. To make a case under this theory, victims must show a concerted pattern of harassment of a repeated, routine, or a generalized nature. Also, the harassing conduct doesn't have to be specifically targeted at an individual. In other words, one employee who observes another employee engaging in sexually harassing conduct may have his own claim of hostile environment sexual harassment.
California courts have laid out several factors to determine the degree of pervasiveness of the sexual harassment, including:
- Nature of the conduct – California courts look at the degree of offensiveness of the behavior. Generally, acts like physical touching are more offensive than unwelcome verbal or written abuse. The more offensive the conduct, the less often it needs to occur to be considered “pervasive.”
- Frequency – California courts consider how often the offending conduct occurred. A daily occurrence of sexual harassment is more likely to constitute “pervasive” behavior than acts that happen once a month or less.
- Number of days – California courts count or approximate the total number of days over which all of the offensive conduct occurs.
- Context – California courts look at the context in which the sexually harassing conduct occurred. Some situations may mitigate the degree of pervasiveness or offensiveness of the sexual conduct.
Suing for Damagers
Employers, supervisors, and coworkers can be liable to the victim for several types of damages. In actions under the Fair Employment and Housing Act, victims may seek:
- Compensatory damages
- Emotional distress damages
- Punitive damages
- Attorney fees and costs
- Injunctive relief
What to do if you are a victim of sexual harassment
There are numerous steps to take if you are the victim of sexual harassment. First, make sure you document the actions taken against you and report it to the both your supervisor and appropriate human resources staff member. If no action is taken, you should consider seeking out an employment lawyer who can guide you through the regulatory process and associated timelines. For example, under the Fair Employment and Housing Act, a claim of unlawful sexual harassment must be filed with DFEH within one year of the unlawful conduct. If a right-to-sue letter is issued by the DFEH, employees then have one year to bring a civil lawsuit. To assert a sexual harassment claim under Title VII, employees have 300 days from the date of the unlawful act to bring a claim with the Equal Employment Opportunity Commission (often called the “EEOC”). If the EEOC issues a right-to-sue letter, the employee must file their civil lawsuit within 90 days, or they could lose their right to sue the harasser.
California Employment Lawyers
An attorney can advise you on your alternatives including whether the conduct you experienced in the workplace amounts to sexual harassment. The lawyers with Kingsley & Kingsley located in Los Angeles, California have a wealth of experience fighting for victims of sexual discrimination and harassment. Call and speak to an experienced California lawyer toll-free at (888) 500-8469 or contact us via email here.
Kingsley & Kingsley
16133 Ventura Boulevard, Suite 1200
Encino, California 91436
Local: 818-990-8300 (Los Angeles Co.)