Chapter One. What is Sexual Harassment?

I. Overview

Sexual harassment can happen anywhere, but this book is focused on sexual harassment in the workplace. Sexual harassment in the workplace is prohibited by federal and California statutes. Sexual discrimination is also prohibited by statutes and in this chapter we explore the difference between sexual harassment and sexual discrimination. We also give general examples of sexual harassment and sexual discrimination in the workplace. Additionally, we introduce the applicable California and federal statutes. In Chapter Two, we give more specific examples of what constitutes sexual harassment in the workplace.

Generally, sexual harassment can include any offensive or unwelcome attention of a sexual nature. For example, you may be sexually harassed by someone whistling at you as you walk down the street or calling you a demeaning name at a neighborhood bar. While these events can be traumatizing and harassing, for the purposes of this book, sexual harassment is limited to unwanted offensive conduct in the workplace, directed at an employee due to the employee’s sex.

Workplace sexual harassment violates both federal and California law. Sexual harassment includes quid pro quo sexual harassment and hostile work environment sexual harassment. Quid pro quo sexual harassment occurs when a term of employment is expressly or implicitly conditioned upon acceptance of an unwelcome sexual advance. Hostile work environment sexual harassment occurs when an employee is subject to unwelcome sexual or gender-related conduct that is sufficiently severe or pervasive to create a hostile or abusive working environment.

II. Distinction Between Sexual Harassment and Gender Discrimination

Sexual harassment is not only morally wrong, it is also against the law. The California Fair Employment and Housing Act (FEHA) and the United States Federal law in Title VII of the Civil Rights Act (Title VII) prohibit discrimination and harassment based on the sex of an employee.

It is not necessarily harassment if your supervisor or employer is being tough on you in an effort to follow through and get the job done. Harassment is conduct that is not necessary for the performance of a supervisory job, but is instead outside the scope of necessary job duties.

Under the California statute, FEHA, an employer of five or more employees can be liable for discrimination, but for liability for harassment an employer only needs to have one or more employees.

The California Supreme Court, in deciding the case of Jones v. The Lodge at Torrey Pines Partnership, relied on Janken v. GM Hughes Electronics in its summary of the distinction between harassment and discrimination. The California Supreme Court quoted the Janken court’s conclusion that:

the Legislature’s differential treatment of harassment and discrimination is based on the fundamental distinction between harassment as a type of conduct not necessary to a supervisor’s job performance, and business or personnel management decisions – which might later be considered discriminatory – as inherently necessary to performance of a supervisor’s job….

Harassment consists of a type of conduct not necessary for performance of a supervisory job. Instead harassment consists of conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives. Harassment is not conduct of a type necessary for management of the employer’s business or performance of the supervisory employee’s job.

Discrimination claims, by contrast, arise out of the performance of necessary personnel management duties.

III. Examples of Sexual Harassment

According to the California Code of Regulations, harassment includes:

• Verbal Harassment;
• Physical Harassment;
• Visual Forms of Harassment (posters, cartoons, drawings, etc.); and
• Sexual favors.

The two main categories of sexual harassment are “quid pro quo” harassment and “hostile work environment” harassment. Sexual harassment can include non-sexual behavior, such as male supervisors yelling in the workplace at female employees in a more forceful or frequent manner than at male employees.

To help give you a better idea of what constitutes sexual harassment, the following is a factual checklist to guide you at a glance. However, every case is unique and should be analyzed based on its own set of facts and surrounding circumstances.

• If your supervisor has asked you for a sexual favor in exchange for a job benefit, you almost certainly have a case for quid pro quo sexual harassment.
• If your supervisor has threatened to harm your job security or conditions if you do not perform a sexual favor for him or her, you almost certainly have a case for quid pro quo sexual harassment.
• If your supervisor yells at women in your office more forcefully and more often than he or she yells at men, you might have a case for hostile work environment sexual harassment.
• If you are being severely or pervasively harassed at work in California because of your sexual orientation, or because of your perceived sexual orientation, you most likely have a case for hostile work environment sexual harassment.
• If you suffer an adverse employment action, such as being demoted or terminated from your job, because you filed a complaint for sexual harassment, or because you helped a coworker file a sexual harassment complaint, you most likely have a case for unlawful retaliation.
• If you are exposed to severe or pervasive sexually graphic language, gestures, or images at work, and the reasonable person in your position would find such conduct to be hostile or abusive, then you might have a case for hostile work environment sexual harassment, but it will depend on all the surrounding circumstances.

Sexual harassment covers considerably more ground than a supervisor or employer threatening to fire you if you refuse sexual advances. Although every case has a unique set of surrounding circumstances, courts have held that the following behavior, when it is sufficiently pervasive (repeated) or severe, can constitute illegal sexual harassment:

• Offensive sexual comments, including repeated sexual innuendo, slurs, crude remarks, and obscene stories or jokes.
• Sexual propositions, insults, and threats.
• Sexually oriented demeaning name calling.
• Persistent unwanted sexual or romantic proposals or attention.
• Leering, staring, whistling, or other sexually suggestive sounds or gestures.
• Displaying pornographic pictures, calendars, cartoons, websites, or other sexually explicit material in the workplace.
• Coerced or unwelcome touching, pinching, kissing, stroking, massaging, squeezing, fondling, or spanking.
• Explicit or implicit pressure for sexual favors.
• Coerced sexual intercourse that is demanded as a condition of employment.

IV. Examples of Gender Discrimination

Gender discrimination refers to discrimination by management in personnel decisions based on an employee’s sex. The following is a situational checklist to guide you in determining what types of workplace decisions constitute actionable gender discrimination. However, as with sexual harassment cases, every gender discrimination case is unique and should be analyzed based on its own distinctive set of facts.

• If you are a woman and you are demoted or suffer other adverse employment action because your employer thinks you are not “lady-like,” you are likely to have an actionable claim for gender discrimination.
• If you are fired because you are pregnant, you almost certainly have a case for unlawful discrimination based on your sex.
• If you are discriminated against and treated differently at work because of your gender, you might have a case for gender discrimination depending on the facts of your case.
• If you have small children and are treated differently at work than coworkers of the opposite sex with small children, and such treatment is adversely affecting your employment, you might have a case for discrimination on the basis of your sex.

V. Controlling Law

In the following chapters, we refer to statutes and legal opinions from cases. If you are interested in learning more about the laws described in this book, you can find the sources in the endnotes which will aid further research.

The state of California has its own sexual harassment laws embodied in the Fair Employment and Housing Act (FEHA). A sexual harassment victim in California has the option to file under California law, but also has the right to file under federal law. The applicable federal law is Title VII of the Civil Rights Act (Title VII).

Both FEHA and Title VII are interpreted by case law. The applicable legal opinions for FEHA are handed down by the courts of California, particularly the California Supreme Court and the California Courts of Appeal. The California laws and court opinions tend to provide more rights to sexual harassment victims than Title VII and its interpretation by the federal courts. However, the state law of California cannot be applied or interpreted to be more restrictive than the minimum rights afforded by federal law.

The United States Supreme Court and the Ninth Circuit Court of Appeals, which includes in its federal jurisdiction the state of California, are controlling in regard to the federal law as applied in California and are very influential in regard to the interpretation of sexual harassment laws in California, because Title VII and FEHA are similar. Federal case law outside of the Ninth Circuit Court of Appeals is influential and persuasive, but not necessarily controlling. Federal case law is informative for the general interpretation of sexual harassment laws.

FEHA at California Government Code Section 12930 (e) gives the Department of Fair Employment and Housing (DFEH) the power to “adopt, promulgate, amend, and rescind suitable rules and regulations.” The California Code of Regulations governing harassment and discrimination is created by the DFEH to interpret FEHA. Although the California Code of Regulations is not binding on California courts, courts will give great weight to an administrative agency’s regulations and interpretation of the statutes under which it operates.

Although rarely used, there is also a provision in the California State Constitution that states, “A person may not be disqualified from entering or pursuing a business, profession, vocation, or employment because of sex, race, creed, color, or national or ethnic origin.”

VI. Questions and Answers on Specific Examples of  Workplace Behavior
The following are examples of real life situations which you may be facing, and answers about whether such behavior constitutes facts sufficient to make a workable sexual harassment or discrimination case. While the individual facts of your case are unique to your situation, these examples should serve as a guideline in determining whether your situation is appropriate to bring to the attention of a lawyer.

Is teasing sexual harassment?

Teasing alone is not generally unlawful. The United States Supreme Court has noted that Title VII is not a “general civility code.” In other words, it is not meant to force people to be nice to one another.

The standards for unlawful discriminatory harassment are designed to filter out lawsuits by plaintiffs that are based on “the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing.”

In order for harassment to have created a hostile work environment, it must be sufficiently severe or pervasive as judged by a reasonable person in the complainant’s position, considering all the circumstances. If teasing is based on sex, and reaches a sufficiently severe or pervasive level, then it constitutes unlawful sexual harassment. The harassment does not necessarily need to involve physical touching to be considered sexual harassment.

If an employee eventually has a consensual relationship with the harasser, is it still sexual harassment?
If the harasser’s behavior was unwelcome, severe and pervasive to begin with, there might have been a hostile work environment before the relationship became consensual and wanted. Also, if there were unwelcome sexual advances which the employee complied with in exchange for employment benefits, or to avoid an employment detriment, then the employee may have suffered unlawful quid pro quo sexual harassment. However, while this conduct may technically have been unlawful sexual harassment, it may be very difficult to convince a jury that such behavior was unwelcome, hostile, or abusive if the employee decided to engage in a relationship with the harasser after the fact.

Can I sue someone for sexual harassment after ending a consensual relationship?
If you have ended a consensual sexual or romantic relationship with someone at work, and your former partner will not stop trying to get you to return to the relationship, then you may have a sexual harassment claim. If your former partner makes getting back into a relationship a condition of your continuing employment, then such conduct may constitute quid pro quo sexual harassment. If your former partner is creating a sufficiently severe or pervasive hostile environment for you at work because you refuse to continue or resume the relationship, this may constitute hostile work environment sexual harassment. The problem with claims of sexual harassment after the end of a consensual relationship is that it may be harder to prove that the harasser’s conduct is indeed hostile or unwanted.

Can one incident constitute sexual harassment?
In quid pro quo sexual harassment cases, where submission to sexual conduct is made a condition for receiving concrete employment benefits or for avoiding a job detriment, it is clear that a single sexual advance can be considered unlawful sexual harassment.

However, in hostile work environment sexual harassment cases, whether a single incident constitutes unlawful sexual harassment depends upon whether the conduct was sufficiently severe to constitute a hostile work environment. While it is possible, it may be more difficult to prove depending upon the severity of the harassment.

My coworker flirts with me at work even though I wish he would not. It makes me uncomfortable. Is this sexual harassment?

It can be difficult to determine whether flirting at work is sexual harassment without knowing the exact facts of a case. However, when flirting at work is unwanted and severe or pervasive, a court may decide that it constitutes unlawful sexual harassment. Because there can be some uncertainty about whether flirting or advances are unwanted, it is important for the offended person to make it clear that the flirting or advances are unwanted.

What is flattering to some, can be hostile and abusive to others. A court will examine how the behavior would affect a reasonable person in the employee’s situation. If the employee is especially sensitive and offended by banter that most would find innocent, then the employee most likely does not have a viable sexual harassment case.

Can favoritism for one employee due to sexual favors be actionable by other employees?
If one employee is rewarded in the workplace (promoted, given better work assignments, not reprimanded when appropriate) as a result of cooperative sexual relations at the expense of other non-favored employees in the workplace, this may be evidence of a hostile work environment. (See the discussion of Miller v. Dept of Corrections in Chapter Two, Section VII (B) on favoritism in the workplace.) However, these cases can be difficult to prove, and a lawsuit may not be the best option.

VII. Conclusion

Only acts of sexual harassment in or relating to the workplace are protected by the federal and California statutes, Title VII and FEHA. Gender discrimination, which sometimes overlaps with sexual harassment, is also prohibited by those same statutes. Generally, sexual harassment involves unwelcome sexual advances, while sexual discrimination involves personnel decisions by supervisors.