California law recognizes two types of sexual harassment claims. The first is quid pro quo harassment, where a term of employment is conditioned upon submission to unwelcome sexual advances. The second type of sexual harassment is “hostile work environment” harassment, where the harassment is sufficiently pervasive so as to alter the conditions of employment and create an abusive work environment. A quid pro quo harassment involves the behavior most commonly regarded as sexual harassment, including, e.g., sexual propositions․ By contrast, a cause of action for sexual harassment on a hostile environment theory need not allege any sexual advances whatsoever. This type of claim is made where it is alleged that an employer created a hostile environment for an employee because of that employee’s sex. (Mogilefsky v. Superior Court)
Whether the sexual conduct complained of is sufficiently pervasive to create a hostile or offensive work environment must be determined from the totality of the circumstances. The plaintiff must prove that the employer or manager’s conduct would have interfered with a reasonable employee’s work performance and would have seriously affected the psychological well-being of a reasonable employee and that she was actually offended. The factors that can be considered in evaluating the totality of the circumstances are: (1) the nature of the unwelcome sexual acts or works (generally, physical touching is more offensive than unwelcome verbal abuse); (2) the frequency of the offensive encounters; (3) the total number of days over which all of the offensive conduct occurs; and (4) the context in which the sexually harassing conduct occurred.” (Fisher v. San Pedro Peninsula Hospital (1989)).
The California courts have repeatedly stated that the prohibition of harassment on the basis of sex requires neither asexuality nor androgyny in the workplace. It forbids only behavior so objectively offensive as to alter the ‘conditions’ of the victim’s employment. Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment is not against the law. The US Supreme Court pointed out that “the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing” is not actionable harassment. (Faragher v City of Boca Raton)
Thus, for instance, a manager telling a female employee she is attractive or that he likes her legs on isolated occasions, without more, will not support a sexual harassment / hostile environment claim. Telling a few sexual jokes here and there without more will also not support a sexual harassment / hostile work environment case. On the other hand, in a case where a supervisor would repeatedly tell his female subordinate (1) to blow him; and that (2) he would love to pull her hair and screw her from behind, that female had a valid harassment case. In that type of case, it wouldn’t matter whether the supervisor actually tried to have sex with his subordinate or whether he was even attracted to her. What matters is that the conduct was sufficiently offensive, of a sexual nature, and was directed to an employee because of her sex.
Unwanted Touching as Sexual Harassment
A hostile environment sexual harassment claim may arise where there have been no outright sexual advances or propositions, but where the plaintiff is subjected to unwanted touching, such as a supervisor or coworker intentionally and repeatedly rubbing up against the plaintiff’s body or touching her in an offensive manner. This is because physical touching is generally considered more offensive than mere words. (Herberg v California Inst. of the Arts (2002)).
Harassment When Men Are Treated With More Respect at the Workplace than Women
“Rude, overbearing, loud, vulgar and generally unpleasant” comments by a male supervisor toward female subordinates, coupled with physically aggressive (though nonsexual) actions, may constitute sexual harassment if male subordinates were treated with proper respect. That there were more women than men in the office is immaterial. (EEOC v National Ed. Ass’n, Alaska).
If you consider filing a sexual harassment complaint, make sure you do it correctly by avoiding these five common mistakes when complaining about discrimination / harassment. If you believe that you are or you have been subjected to sexual harassment / hostile work environment at your workplace, feel free to contact us to discuss your legal options.
For more useful information about unlawful workplace harassment claims, please read about the difference between workplace discrimination and harassment.