Both California and Federal laws define sexual harassment as unwanted sexual conduct of two main types: (1) quid pro quo harassment, and (2) hostile environment harassment. Generally, sexual harassment includes unwelcome sexual advances, requests for sexual relations or other verbal or physical conduct of a sexual nature.
Quid pro quo sexual harassment occurs when an employer, or an employer’s agent, implicitly or explicitly attempts to make a submission to sexual demands a condition of employment. Thus, an employee may perceive that he or she must tolerate sexual advances or engage in a sexual relationship in order to continue employment, to achieve advancement, or to avoid adverse employment consequences such as poor evaluations or demotions. Similarly, it is unlawful for an employer or an employer’s agent to condition favorable treatment such as promotions, salary increases, or preferred assignments, on an employee’s acceptance of sexual advances or relations, such as a supervisor saying “If you want to keep your job, you’d better have sex with me”.
The more frequent type of sexual harassment, hostile environment harassment, generally occurs when the employee’s work environment is made hostile or abusive by sexual misconduct. Hostile work environment sexual harassment occurs when an employee is subjected to sexual, abusive, or offensive conduct because of his or her gender. Such conduct creates an unlawful work environment when it is severe or pervasive enough to make a reasonable person of the employee’s gender believe that the conditions of employment have been altered and the working environment has become hostile or abusive. The conduct does not have to be sexual in nature and does not have to involve physical contact. For example, if a woman is subjected to non-sexual taunts or adverse treatment because of her gender, her work environment may be deemed unlawfully hostile and abusive. This analytical framework may also be applied to hostile work environments created because of an employee’s race, nationality, creed, disability, or other characteristics enumerated by the California Fair Employment and Housing Act (FEHA). For example, racial slurs or offensive comments or jokes about a person’s dress, culture, accent or ethnic background may be severe or pervasive enough to create a hostile or abusive environment that violates the FEHA.
California’s FEHA defines sexual harassment as harassment based on sex or of a sexual nature; gender harassment; and harassment based on pregnancy, childbirth, or related medical conditions. The definition of sexual harassment includes many forms of offensive behavior, including harassment of a person of the same gender as the harasser. The following is a partial list of types of sexual harassment:
• Unwanted sexual advances;
• Offering employment benefits in exchange for sexual favors ;
• Actual or threatened retaliation;
• Leering; making sexual gestures; or displaying sexually suggestive objects, pictures,cartoons, or posters;
• Making or using derogatory comments, epithets, slurs, or jokes;
• Sexual comments including graphic comments about an individual’s body; sexually degrading words used to describe an individual; or suggestive or obscene letters, notes, or invitations
• Physical touching or assault, as well as impeding or blocking movements
Retaliation Is Also Prohibited
Sexual harassment is clearly against the law, but so is retaliating against someone for complaining about sexual harassment or for participating in an investigation of sexual harassment. In other words, the unlawful retaliation may include taking revenge against the victim of sexual harassment or someone who is complaining on behalf of the victim.
Examples of retaliation include: you complain about sexual harassment and are made to take an unpaid leave of absence, although the harasser continues to work; after you write a letter describing sexual harassment that you witnessed, you are reassigned to a less desirable position in the same or different department. If your employer retaliates against you for complaining about sexual harassment or for participating as a witness in an investigation of sexual harassment, you may have a viable legal claim against the harasser and the employer.
As in other areas in the employment context, all employers must take the following actions against sexual harassment and discrimination. The employer is required to, among other things:
• Take all reasonable steps to prevent discrimination and harassment from occurring. If harassment does occur, take effective action to stop any further harassment and to correct any effects of the harassment;
• Develop and implement a sexual harassment prevention policy with a procedure for employees to make complaints and for the employer to investigate complaints. Policies should include provisions to;
• Fully inform the complainant of his/her rights and any obligations to secure those rights;
• Fully and effectively investigate. The investigation must be thorough, objective, and complete. Anyone with information regarding the matter should be interviewed. A determination must be made and the results communicated to the complainant, to the alleged harasser and, as appropriate, to all others directly concerned;
• Take prompt and effective corrective action if the harassment allegations are proven. The employer must take appropriate action to stop the harassment and ensure it will not continue. The employer must also communicate to the complainant that action has been taken to stop the harassment from recurring. Finally, appropriate steps must be taken to remedy the complainant’s damages, if any.
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