What is sexual harassment? A lawyer’s response.

Sexual harassment is rampant in many workplaces. Sometimes it can take extreme forms (for example, sexual assault). Other times, it can be created through offensive and inappropriate comments that a supervisor or coworker considers to be “just joking.” It can also be the result of misogyny and hostility toward women in the workplace. Sexual harassment can turn an otherwise perfect job into a nightmare.

There are two categories of sexual harassment:

1. Quid pro quo sexual harassment, and
2. Hostile work environment.

Quid Pro Quo Sexual Harassment

Quid pro quo sexual harassment occurs when a supervisor (or person with authority) conditions an employee’s job or benefits on the acceptance of sexual advances/conduct, or when the supervisor makes employment decisions based on whether the employee accepted the sexual advances/conduct. For example, if a supervisor insinuates that an employee will have to sleep with him to advance in the company, that is quid pro quo sexual harassment.

To establish a claim for quid pro quo sexual harassment, a plaintiff must prove:

1. That the plaintiff was an employee;
2. That the alleged harasser made unwanted sexual advances to the plaintiff or engaged in other unwanted verbal or physical conduct of a sexual nature;
3. That job benefits were conditioned, by words or conduct, on the plaintiff’s acceptance of the sexual advances or conduct;
   or
   That employment decisions affecting the plaintiff were made based on his/her acceptance or rejection of the sexual advances or conduct;
4. That at the time of his/her conduct, the harasser was a supervisor or agent for the employer;
5. That the plaintiff was harmed; and
6. That the harasser’s conduct was a substantial factor in causing the plaintiff’s harm.

(See California Civil Jury Instruction No. 2520.)

Having to submit to sexual advances–or even having to laugh along with someone’s inappropriate sexual jokes–should never be a factor in whether someone succeeds at work.

Hostile Work Environment Sexual Harassment

Hostile work environment sexual harassment cases are far more common than quid pro quo cases. In hostile work environment cases, a supervisor or coworker creates an abusive work environment through comments and conduct that are either based on sex/gender or are of a sexual nature.

It is important to know that sexual harassment does not need to be based on desire. It can also be the result of misogyny (for example, where someone is hostile to the presence of women in positions of authority or in the workplace as a whole). Or, it can be a means for someone to assert dominance against another person (someone can create a hostile work environment for a person of any gender or sexual orientation). This means that a person of any gender can engage in sexual harassment against any other person.

A person’s intent is completely irrelevant; the fact that someone did not intend to offend their coworker or subordinate has no bearing on whether they created a hostile work environment. In addition, an employee can have a sexual harassment case based on conduct that was not directed at them if they had to witness and be around it.

Here are some examples of comments and conduct that can amount to sexual harassment. This list is by no means exhaustive because so many different types of conduct can constitute sexual harassment:

• Inappropriately touching an employee;
• Sexually propositioning an employee;
• Talking about sexual exploits;
• Commenting on the appearance of an employee in a way that sexualizes them;
• Making sexually suggestive comments;
• Using offensive gendered slurs;
• Making stereotypical comments based on gender;
• Intentionally misgendering transgender employees;
• Targeting women (or anyone else based on gender, gender identity, or gender expression) for abuse or negative treatment; and
• Treating women less favorably than men in the workplace (or vice versa).

To establish a claim for hostile work environment, a plaintiff must prove:

1. That the plaintiff was an employee;
2. That the plaintiff was subjected to unwanted harassing conduct because of sex, gender, or other protected category;
3. That the harassing conduct was so severe, widespread, or persistent that a reasonable member of the plaintiff’s protected group in his/her circumstances would have considered the work environment to be hostile or abusive;
4. That the plaintiff considered the work environment to be hostile or abusive;
5. That a supervisor with authority over the name of plaintiff engaged in the conduct;
   or
   That the employer knew or should have known of the conduct and failed to take immediate and appropriate corrective action;
6. That the plaintiff was harmed; and
7. That the conduct was a substantial factor in causing the plaintiff’s harm.

(See California Civil Jury Instruction No. 2521.)

To create a hostile work environment, the conduct needs to be either “severe” or “pervasive.” One incident can be enough if the conduct is egregious. For example, groping a person’s genitals one time will likely create a hostile work environment. On the flip side, one negative comment alone is usually not enough to meet the severe standard (there are exceptions). But sexually inappropriate or offensive comments can, if they happen often enough, be pervasive so as to create a hostile work environment. This can be the case even if there is no other harassing conduct and each of the comments standing alone is not particularly severe. Harassers often engage in a number of different types of behaviors. These are all considered together in determining whether there is a hostile work environment.

Note that this hostile work environment standard applies to harassment based on other protected categories, including race, national origin, religion, age, and disability. You can review the post When is a “hostile work environment” illegal? to learn more about whether conduct constitutes a hostile work environment.

Companies Are Strictly Liable in California For A Supervisor’s Harassment And Must Take Corrective Action

Under California law, companies are strictly liable for a supervisor’s harassment, regardless of whether management knew about it. In contrast, if an employee other than a supervisor or agent engages in the harassment, the company is only liable if/when it knows or should have known about the conduct but fails to take immediate and appropriate corrective action. In addition, harassers can be sued personally for their own sexually harassing behavior.

Conclusion

Sexual harassment can take many forms. None of them are acceptable in the workplace, and the law does provide recourse.

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