Sexual harassment in the workplace is prohibited by both state and federal law. Under federal law, sexual harassment is not expressly identified as a prohibited employment practice by Title VII (the federal statute that prohibits employment discrimination). However, courts have recognized sexual harassment as a form of sexual discrimination prohibited by Title VII, and the Federal Equal Employment Opportunity Commission ("EEOC") has promulgated regulations prohibiting sexual harassment in the workplace. Under California law, sexual harassment is expressly prohibited by statute in the California Fair Employment and Housing Act, Cal. Gov't. Code § 12940(h)(1).
Under state and federal law, there are two types of harassment, "quid pro quo" and "hostile environment."
Quid pro quo: Quid pro quo harassment is employer conduct that (a) conditions tangible job benefits (e.g., promotion or salary increases) on acquiescence to unwelcome sexual conduct or (b) penalizes an individual for refusing to participate in such conduct. For example, a supervisor might say, "Spend the night with me and I'll promote you," or "If you don't spend the night with me, you'll be fired." The federal Equal Employment Opportunity Commission ("EEOC") defines quid pro quo harassment as follows: (i) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, or (ii) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual. 29 C.F.R. § 1604.11(a). The California Fair Employment and Housing Commission ("FEHC") Rules and Regulations define this type of sexual harassment as "unwanted sexual advances which condition an employment benefit upon an exchange of sexual favors." FEHA Rules and Regulations § 7287.6(b)(1)(D).
Hostile environment: A plaintiff who is subjected to a hostile, intimidating or offensive work environment, which is so severe or pervasive that it alters the conditions of the victim's employment, may state a claim for sexual harassment -- even if it does not result in the loss of any tangible job benefits. These claims differ from quid pro quo cases in that submission to sexual advances is not made an explicit precondition of employment benefits. The EEOC defines this type of sexual harassment as follows: "Such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive work environment even if it leads to no tangible or economic job consequences." 29 C.F.R. § 1604.11(a)(3). The California Department of Fair Employment and Housing's pamphlet on sexual harassment includes the following as a partial list of the types of behavior that could constitute sexual harassment:
- Verbal harassment such as derogatory comments or slurs, comments about an individual's body, use of sexually degrading words, suggestive or offensive notes, letters, or invitations;
- Physical harassment such as any touching of another, assault, impeding or blocking movement, or any physical interference with normal work or movement when directed at an individual;
- Visual forms of harassment, such as displaying derogatory posters, cartoons or drawings that are offensive;
- Requests for sexual favors or unwanted sexual advances; and
- Any other conduct that unreasonably interferes with an employee's performance of his or her job or that creates an intimidating, hostile or offensive working environment.
The best way to minimize occurrences of sexual harassment in the workplace is for employers to implement preventative measures. These include adoption and disbursement of a policy prohibiting sexual harassment; establishing grievance procedures for employees to report sexual harassment complaints; holding training and discussion seminars like this one to educate employees about sexual harassment and provide information about how to make and resolve complaints. Your labor and employment attorney can assist you in preparing your policies and procedures and in handling employee complaints in a manner that should minimize the employer's potential liability.