Sexual Harassment Basics

California Sexual Harassment Basics

California has a law prohibiting sexual harassment in the workplace. The California Fair Employment and Housing Act codified at Cal. Gov. Code § 12940, makes it unlawful for an employer to engage in any form of harassment or discrimination against an employee on account of their sex, sexual orientation, sexual preference, gender identity, or marital or pregnancy status. An employer’s agent, supervisor, or other managerial personnel is prohibited from engaging in sexual harassment. If employers fail to take reasonable measures to prevent co-worker, third-party, and client sexual harassment, the FEHA makes it unlawful – and provides for fines against them. Title VII of the Civil Rights Act of 1964, specifically, contains provisions that prohibit sexual harassment. Both California law and Title VII define sexual harassment and set standards for employers to be held accountable for or allowing it.

The term “sexual harassment” is generally defined as two types of conduct. The first, known as “quid pro quo” harassment, occurs when employment perks are given to or accepted by an employee in exchange for tolerating or accepting unwelcome sexual advances. Second, there is sexual harassment based on a hostile work environment. A hostile working environment may be defined as one or more of the following:

• Verbal harassment, such as derogatory remarks or slurs based on sex, gender, or orientation
• Physical harassment including assaults and unwanted touching
• Visual harassment includes posters, photos, cartoons, or other images of a sexual nature

Employees who have been subjected to sexual harassment may sue their employers for pecuniary compensation. A civil case can be brought on the basis of either type of sexual harassment. This can occur even if the victim has never been subjected to sexual advances or the demand for sexual favors in exchange for employment benefits.

A victim of quid pro quo sexual harassment must typically provide the following legal elements in order to succeed:

• That the victim was an employee or a job applicant or a contractor providing services
• That the supervisor (or another person with management over the victim’s employment) made indecent propositions or engaged in other unpleasant verbal or physical conduct of a sexual nature.
• That terms of employment, job benefits, or favorable working conditions were made contingent, by words or conduct, on the victim’s acceptance of sexual advances or behavior.
• That the victim was harmed as a result of the unwanted sexual advances or behavior.

Unwanted sexual advances might include sexual propositions, unsolicited graphic discussions of sexual acts, compliments on the employee’s body and its potential uses as a sex toy, and so on. The victim may suffer physical or emotional harm, emotional distress, anxiety, and other medical issues, as well as loss of income resulting from a victim declining to accept the unwanted sexual advances.

A victim must demonstrate facts identical to those described above and show that the sexually provocative or abusive aspects of the workplace were serious enough or pervasive enough to substantially alter the conditions of employment and establish a work environment that qualifies as “hostile” to employees because of their sex in order to establish sexual harassment based on a hostile work environment. Under some circumstances, a single occurrence or slur or hurtful remark may be enough to establish an abusive and/or hostile workplace. However, to show such an environment, more than one incident is required.

A civil lawsuit can be brought against an employer by a victim of sexual harassment. The aim of these actions is to protect the rights of workers and, when feasible, to penalize employers who engage in deliberate sexual harassment or allow for particularly egregious conduct. Victims may be eligible for compensation in the form of lost wages, medical expenses, and other costs if the harassment resulted in physical or emotional trauma that necessitated medical treatment. Damages can include compensation for emotional suffering and other types of losses.