It is common knowledge that sexual harassment in the workplace is an unlawful matter. What is not common knowledge, however, are the types of acts that in this day and age may be considered sexual harassment or that can amount to sexual harassment. Traditionally, sexual harassment involved a situation where a female employee is harassed by another male employee or co-worker in the workplace either through unwelcome physical conduct, forcing the female to unwelcome sexual behavior by threatening her termination or promotion opportunity, or the outright making of unwelcome sexual gestures and comments towards the female. Through the years, however, the courts have expanded the scope of conduct that is considered “sexual harassment,” and prohibited under the law.

In California, sexual harassment laws are part of the Fair Employment and Housing Act (“FEHA”) which is enforced by the California Department of Fair Employment and Housing (“DFEH”). Sexual harassment as defined by FEHA includes not only verbal harassment (e.g., epithets, derogatory comments or slurs) and physical harassment (e.g., assault or physical interference with movement or work), but also includes visual harassment (e.g., derogatory cartoons, drawings or posters). Sexual harassment is no longer limited to just between individuals of opposite sexes but also applies to same-sex harassment because FEHA considers unwelcome sexual advances of an employer toward an employee of the same sex and harassment as unlawful sexual harassment. Additionally, under FEHA, unlawful harassment on the basis of gender identity or gender expression is also prohibited. “Sex” as defined by FEHA does not exclusively refer to just male or female but also includes pregnancy, childbirth, breast-feeding and related medical conditions.

Extensive sexual favoritism has been held by the California Supreme Court as constituting unlawful sexual harassment. In the case of Miller v. California Department of Corrections, two female employees at a prison claimed that the warden engaged in sexual affairs with several female employees and that those female employees received promotions, favorable assignments and other rewards. The two females sued for sexual harassment and retaliation under FEHA. Their claims were rejected by the trial court because the same disadvantages were experienced by all employees, male or female, who were not sexually involved with the warden. Moreover, the warden did not engage in improper sexual conduct toward either of the complaining employees. On appeal, the Supreme Court disagreed with the trial court. It held that “extensive sexual favoritism in a workplace can create a hostile work environment in which female employees can reasonably conclude that management views them as “sexual playthings” or that women must engage in sexual conduct with their supervisors to receive favorable treatment.” Based on this opinion, employees suffering from disadvantages in the workplace because of other romantic relationships and favoritism occurring between supervisors and other employees may have a claim for sexual harassment themselves. Additionally, if they complain about the favoritism and get terminated, demoted, threatened with reprisal, or not chosen for promotion as a result of the complaint(s), they may also have a claim of retaliation.

A California Court of Appeal in Birchstein v. New United Motor Manufacturing, Inc., held that staring, even when it is not done in a sexually suggestive manner, may constitute sexual harassment. A female employee had alleged that a male employee stared at her two to ten times each day, each stare lasting from several seconds to 10 minutes, though never in a sexually suggestive manner. She had earlier reported the same man to her employer for overt sexual harassment, at which time he stopped speaking to her and began a staring campaign. The court could not take the overt acts of harassment into account because they were more than one year old and barred by the statute of limitations. However, the court held that a violation of gender-based harassment laws could be found based on the pattern of overt sexual harassment, followed by a complaint, followed by a retaliatory act.

As indicated above, sexually oriented posters in the workplace could also constitute (e.g., putting up posters and/or calendars depicting nude or scantily dressed women) and/or obscenities in the workplace can also create a hostile work environment sufficient to constitute sexual harassment.

It is important to note that conduct constituting sexual harassment can come from a variety of sources including supervisors, co-workers, customers, and vendors. In most cases, the employer will be held responsible for harassment that occurs on the premises in connection with the employment relationship. Employers are strictly liable for sexual harassment of a subordinate by a supervisor (and the supervisor who engaged in the sexual harassment is also personally liable). However, the employer is liable for harassment between co-workers only if the employer knew (or should have known) about the conduct and failed to take immediate and appropriate corrective action (but the employee is still personally liable nontheless). Surprisingly, employers may also even be responsible for acts of non-employees who harass their employees, applicants or independent contractors if the employer, its agents or supervisors knew or should have known of the harassment and failed to take immediate and appropriate corrective action. Employers also have a duty to protect their employees from harassment by third parties, such as customers, even when harassment may be inherently part of the job.

Based on the expansion of protection against sexual harassment afforded to employees in the workplace as discussed above, employees should carefully evaluate their work environment and not hastily rule out any inappropriate conduct because what the employee thinks is permissible may actually constitute sexual harassment. Neither should employees be afraid to report acts or suspicions of sexual harassment based on the laws protecting against retaliation afforded by FEHA. However, because there is not always a fine line between what conduct amounts to unlawful sexual harassment, the advice of an employment attorney who specializes in this area is recommended. Employees should be cautious to not wait too long before investigating the matter due to the statute of limitations which prevents any possibility of recovery after a certain time has passed since the unlawful act.