Finley Employment Law represents both employees and employers with respect to sexual harassment claims.
There are two types of sexual harassment: “quid pro quo” (Latin for “something for something”) sexual harassment and “hostile work environment” sexual harassment.
“Quid pro quo” sexual harassment is where a supervisor or manager offers “something” (e.g., a job benefit such as a promotion or a raise) in return for “something” (e.g., the employee’s submission to the supervisor’s requests for sexual favors). The supervisor’s requests for sexual favors do not need to be explicit. Instead, the requests can be in the form of veiled or indirect statements and still constitute prohibited sexual harassment.
“Hostile work environment” sexual harassment occurs when unwelcome comments or conduct based on sex unreasonably interfere with an employee’s work performance or create a hostile or abusive work environment.
To prevail on a “hostile work environment” claim under California law, an employee must prove that the harassing conduct was “severe enough or sufficiently pervasive to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees because of their sex.” Hughes v. Pair, 46 C.4th 1035, 1043 (2009) (emphasis added). In other words, the employee must prove that the harassing conduct was severe or pervasive, but not both.
To determine whether the harassing conduct was “severe” or “pervasive,” courts will evaluate the totality of the circumstances, including (a) the nature of the unwelcome sexual words or acts (physical touching is generally considered more offensive than mere words); (b) how often, and over what period of time, the conduct occurred; (c) the circumstances under which the conduct occurred; (d) whether the conduct was physically threatening or humiliating; and (e) the extent to which the conduct unreasonably interfered with the employee’s work performance.
The California Department of Fair Employment and Housing has stated that the following behaviors may constitute “hostile work environment” sexual harassment:
“1. Unwanted sexual advances
- Offering employment benefits in exchange for sexual favors
- Leering; gestures; or displaying sexually suggestive objects, pictures, cartoons, or posters
- Derogatory comments, epithets, slurs, or jokes
- Graphic comments, sexually degrading words, or suggestive or obscene messages or invitations
- Physical touching or assault, as well as impeding or blocking movements”