Sexual harassment can take a variety of forms and is not always based upon overtly sexual conduct. Most people recognize that sexual advances by a coworker or supervisor, and sexually based comments, jokes and visuals may constitute sexual harassment in the workplace. But there are other types of seemingly subtle conduct that may also rise to the level of sexual harassment. For example, if a supervisor continually stares at a female employee, looks her up and down, or consistently hovers in her personal space, this may amount to actionable sexual harassment. Similarly, while it may be clear that grabbing someone’s buttocks or breast is sexual harassment, less obvious touching of an employee’s shoulder, back or hand may be equally offensive and inappropriate conduct for the workplace. Sexual harassment may also be based upon sexual comments and gestures that are not necessarily directed at a particular employee, but permeate the working environment to a substantial degree.
In California, under the Fair Employment and Housing Act (FEHA), employees are afforded protection from two general categories of sexual harassment: hostile work environment and quid pro quo harassment.
Hostile work environment sexual harassment is defined as unwelcome sexual advances, comments or conduct that is so severe and pervasive it interferes with or alters the employee’s working conditions, creating an abusive working environment.
Quid pro quo sexual harassment usually involves a supervisor requiring an employee to engage in some sexual relationship or conduct in order to keep her job or otherwise gain a promotion, positive evaluation or other compensation.
In such cases, giving into a supervisor’s sexual advances, will not necessarily prevent a claim of sexual harassment, so long as the initial advances were unwelcome and the victim employee is able to establish that she consented out of fear of losing her job or other tangible employment benefit as opposed to engaging in a voluntary, consensual relationship. Similarly, if an employee has voluntarily participated in consensual sex with a supervisor and is later subject to retaliation by the supervisor when she breaks off the relationship, this conduct may still constitute actionable quid pro quo sexual harassment.
A single incident of quid pro quo harassment in which a supervisor demands cooperation with his advances and denies some tangible job benefit when his advances are rejected, may be sufficient to establish a claim for sexual harassment. On the other hand, a hostile work environment claim of sexual harassment usually requires some ongoing inappropriate sexual conduct that is severe and pervasive to the point of interfering with the individual employee’s ability to perform her job.
Although the most commonplace circumstances of sexual harassment involve harassment by a male against a female, the FEHA provides the same protection for male subordinate who is sexually harassed by a female supervisor. The protection extends to same-sex sexual harassment. For example, a male subordinate who is the subject of sexual harassment and advances by a male supervisor would be entitled to raise a claim of either hostile work environment or quid pro quo sexual harassment, depending on the particular inappropriate conduct involved.
Under the FEHA, your employer has a duty to prevent workplace sexual harassment and it is usually best to report such conduct immediately to management or human resources. If you are experiencing what you believe to be sexual harassment in the workplace in Orange County, Riverside County, Los Angeles County or San Bernardino County, please contact Stevens & McMillan at (800) 738-3353 for a free consultation. This article has only touched on the general scope of the law and is for information purposes only. This article is not intended to give legal advice.