Sexual harassment can take a variety of forms, and with more media platforms available to employees, sexual harassment has never been more prevalent in the workplace. Coworkers and supervisors alike are connected through Facebook, Twitter, and other social networks. They also commonly communicate through e-mails and text messages.
But when does a dirty joke or sexually explicit message become sexual harassment? How far can employees go before they commit unlawful acts? This article provides an answer to these questions and more for California employees.
Sexual harassment law in California arises from two sources. On the state level, California has adopted the Fair Employment and Housing Act (commonly called “FEHA”), which expressly prohibits sexual harassment. ((Gov’t Code, §§ 12900–12996; specifically, Gov’t Code, § 12940, subd. (j)(4)(C).)) On the federal level, Title VII of the Civil Rights Act of 1964 makes discrimination on the basis of a person’s sex unlawful. ((42 U.S.C. §§ 2000e et seq.)) For the most part, FEHA provides greater protection for employees than Title VII. So, when bringing a lawsuit, California employees usually seek relief exclusively under FEHA.
To some extent, California’s prohibition of sexual harassment is also enshrined in the California Constitution, which prohibits employment discrimination on the basis of sex. ((Cal. Const., art. 1, § 8; Rojo v. Kliger (1990) 52 Cal.3d 65, 90.)) That rule, however, is a less common avenue of obtaining relief in sexual harassment cases.
Traditionally, there have been two categories of sexual harassment: (1) quid pro quo sexual harassment, and (2) hostile work environment sexual harassment. ((Beyda v. City of Los Angeles (1998) 65 Cal.App.4th 511, 516–517.)) These categories do not exist in any statute. Rather, they were established through a number of court cases and are somewhat outdated—particularly because many cases involve a hybrid of both theories. ((Burlington Industries, Inc. v. Ellerth (1998) 524 U.S. 742, 765 [“the labels quid pro quo and hostile work environment are not controlling for purposes of establishing employer liability”]; Hughes v. Pair (2009) 46 Cal.4th 1035, 1042; Mogilefsky v. Superior Court (1993) 20 Cal.App.4th 1409, 1415.)) Still, they provide a good explanation of the kind of conduct that is prohibited in the workplace.
Quid pro quo sexual harassment occurs when a term of employment is conditioned on submission to unwelcome sexual advances. ((Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590.)) These kinds of situations usually take one of two forms:
The threat or offer can be either express or implied. ((Mogilefsky v. Superior Court, supra, 20 Cal.App.4th at p. 1414.)) In other words, the mere discussion of sexual acts or behavior that could lead to sexual acts can suggest an offer or threat.
Courts have noted that these kinds of cases usually involve, “sexual propositions, unwarranted graphic discussion of sexual acts, and commentary on the employee’s body and the sexual uses to which it could be put.” ((Id. at p. 1414.))
A single instance of quid pro quo sexual harassment can be enough to support a lawsuit.
A hostile work environment is created when harassment is serious and repeated. More technically, hostile work environment sexual harassment occurs where the victim’s work environment is made hostile, offensive, oppressive, intimidating, or abusive due to pervasive sexual harassment. ((Accardi v. Superior Court (1993) 17 Cal.App.4th 341, 348–349.))
Because conduct must be “pervasive,” there usually must be more than one instance of unlawful conduct to create a hostile work environment. To make a case under this theory, victims must show a concerted pattern of harassment of a repeated, routine, or a generalized nature. ((Fisher v. San Pedro Peninsula Hospital, supra, 214 Cal.App.3d at p. 610.))
The degree of hostility required to establish unlawful sexual harassment will vary from case-to-case. Courts will look at each case from the perspective of a reasonable person in the shoes of the alleged victim. ((Beyda v. City of Los Angeles, supra, 65 Cal.App.4th at p. 519–520.)) California courts have laid out several factors to determine the degree of pervasiveness of the sexual harassment, including:
The line between sexual harassment and innocent conduct is not always clear. Generally, if you are concerned about whether conduct is sexual harassment, it is a good idea to avoid engaging in that conduct. This usually includes avoiding sexual jokes, offers, or innuendo.
But not all jokes, offers, or innuendo meet the standard of unlawful sexual harassment. In fact, courts have stated that comments “tinged with offensive sexual connotations” are not enough to constitute unlawful sexual harassment. ((Lewis v. City of Benicia (2014) 224 Cal.App.4th 1519, 1525–1526.)) Rather, courts take a fact-specific approach to sexual harassment cases.
Generally “harassment” includes four types of behaviors:
Unwanted physical touching is often the most obvious kind of sexual harassment. Employees may not touch or physically interfere with another employee if that touching is based on the person’s sex or a sexual attraction. ((Cal. Code of Regs., tit. 2, §§ 11019, subd. (b).))
Where things get confusing is when a form of touching could be construed in multiple ways. Touching a coworker’s shoulder, for example, could seem sexual in some circumstances but not others.
Unfortunately, there is no bright-line test to determine what kind of touching is okay and what kind of touching is not. Instead, courts look at the all of the surrounding facts of each case. Touching will be found to be unlawful if it is both unwanted and severe or pervasive enough to create an abusive working environment. ((Fuller v. City of Oakland (9th Cir. 1995) 47 F.3d 1522, 1527.))
The Ninth Circuit has given several examples of the kinds of touching that would constitute unlawful sexual harassment, including:
Not all sexual touching in the workplace is sexual harassment, however. Federal cases have suggested that a single instance of breast-grabbing is not pervasive enough to constitute unlawful sexual harassment. ((Brooks v. City of San Mateo (9th Cir. 2000) 229 F.3d 917, 926–927.)) It is not clear whether this case would have turned out the same way if it had been brought in a California court. But, the California Court of Appeal has held that two separate incidents where a supervisor rubbed his arm against the victim’s breast were insufficient to establish unlawful sexual harassment. ((Mokler v. County of Orange (2007) 157 Cal.App.4th 121, 145–146.))
Additionally, isolated incidents of sexually-charged horseplay might not constitute sexual harassment, even if they take place sporadically over a period of years. ((Candelore v. Clark Cnty. Sanitation Dist. (9th Cir. 1992) 975 F.2d 588, 590.)) The courts in these cases acknowledged that the conduct was improper, but it simply did not meet the severity or pervasiveness required to be sexual harassment. It is still very possible that the conduct underlying the lawsuit could have been successfully brought under a different theory, like assault or battery.
The fact is that all employees have different preferences in terms of what they are physically comfortable with. Some employees like to hug, while others don’t. If there is a question about whether certain conduct is appropriate, it is best to avoid it altogether.
Harassing behavior includes saying or sending a person “epithets, derogatory comments, or slurs.” ((Cal. Code of Regs., tit. 2, §§ 11019, subd. (b).)) These can include any comments that demonstrate hostility toward a specific protected group—in many cases, women. ((Lyle v. Warner Brothers Television Prods. (2006) 38 Cal.4th 264, 281.)) Comments that evidence sexism through the use of demeaning, gender-specific terms have been held to constitute unlawful sexual harassment. ((Miller v. Department of Corrections (2005) 36 Cal.4th 446, 465–466.)) Courts have held that even cruel practical jokes, although not conduct of a sexual nature, may be properly considered to constitute sexual harassment. ((Accardi v. Superior Court, supra, 17 Cal.App.4th at p. 349, citing with approval Hall v. Gus Construction Company, Inc. (8th Cir. 1988) 842 F.2d 1010.))
The California Supreme Court has cited, with approval, numerous cases where demeaning language alone was enough to establish unlawful sexual harassment. ((Lyle v. Warner Brothers Television Prods., supra, 38 Cal.4th at p. 281.)) In one case, repeated use of the phrase “f***ing b**ch” and one-time use of “c**t” were enough to establish unlawful sexual harassment. In other cases, phrases like “dumb f***ing broads” were sufficiently offensive. ((Id. at pp. 281–282.)) In each of those situations, derogatory language directed specifically at women used gender-specific, demeaning language. Because the language involved gender, it constituted sexual harassment.
Presumably, a similar level of protection would extend to language used against males or members of other gender identities or sexual orientations.
When people have differing levels of power, a sexual advance may sometimes feel mandatory. When a supervisor, for example, offers sex to a subordinate employee, that employee could easily believe that their continued employment depends on whether they agree to the sex. The compulsory nature of supervisor/employee relationships brings up a serious question of whether sexual exchanges between the two parties are truly consensual. Accordingly, in California, employers and supervisors may not require employees to submit to or tolerate unwelcome sexual advances as a condition of their employment. ((Cal. Code of Regs., tit. 2, §§ 11019, subd. (b)(1)(D); Hughes v. Pair (2009) 46 Cal.4th 1035, 1042–1043.))
Most of the time, these exchanges are implicit; supervisors or employers are rarely bold enough to explicitly condition a work-related benefit on sex. The unspoken nature of the exchange, however, doesn’t make it any less illegal. A supervisor or employer may not condition a work-related benefit on sexual behavior, regardless of whether that condition is stated expressly or impliedly. ((Id.))
The U.S. Supreme Court has emphasized that sexual advances must be unwelcome to constitute unlawful sexual harassment. ((Meritor Savings Bank v. Vinson (1986) 477 U.S. 57, 65.)) California regulations also specifically prohibit unwanted sexual advances. ((Cal. Code of Regs., tit. 2, §§ 11019, subd. (b)(1)(D), 11034, subd. (f)(1).)) Courts have noted that a hostile work environment can occur even if the sex-related comments are not sexual advances directed at the employee. ((Accardi v. Superior Court, supra, 17 Cal.App.4th at p. 348.)) But the comments must still be unwelcome.
In defining “unwelcome,” courts have tended to favor the alleged victim. They have adopted a “reasonable victim” standard to look at whether a reasonable person of the same sex as the victim would consider the comments sufficiently severe or pervasive. ((Ellison v. Brady (9th Cir. 1991) 924 F.2d 872.)) Under this standard, “unwelcome” would be interpreted from the perspective of the victim. There would not need to be any objective request to stop the offending conduct. So, a harasser could not even realize their conduct was unwelcome, and it could still constitute unlawful sexual harassment. ((Id. at p. 880; see also Miller v. Department of Corrections (2005) 36 Cal.4th 446, 462.))
From these perspective, even bragging about past sexual exploits, telling sexual jokes, or repeated double entendres could constitute sexual harassment. Additionally, even if the employee-victim agrees to engage in sexual conduct, sexual comments can still be unwelcome. Just because a person is not forced to engage in sexual behavior does not mean that they want to engage in that sexual behavior. ((Meritor Savings Bank v. Vinson, supra, 477 U.S. at p. 68.))
California’s employment regulations prohibit “derogatory posters, cartoons, or drawings” that are based on sex. ((Cal. Code of Regs., tit. 2, §§ 11019, subd. (b)(1)(C).)) To constitute sexual harassment, California courts have suggested that the images must be directed at the alleged victim or toward a specific gender. ((Taylor v. Nabors Drilling USA (2014) 222 Cal.App.4th 1228, 1236.))
Like other types of sexual harassment, visual images must either be: (1) of a sexual nature, or (2) of a hostile nature based on gender. ((Ramirez v. Wong (2010) 188 Cal.App.4th 1480, 1487.)) They must also be unwelcome and pervasive or severe. ((Ibid.)) An employee that requests sexually-graphic text messages cannot later claim sexual harassment because those kinds of text would not be unwelcome.
Of course, not all unwanted lewd images constitute sexual harassment. In one California case, two art students depicted several teachers in sexually-suggestive positions with each other. The drawing was displayed for a period of 24-hours in a gallery while administrators decided whether to remove it. The California Court of Appeal rejected the teachers’ claims of sexual harassment because the 24-hour display of the image was not sufficiently pervasive. ((Herberg v. California Inst. of the Arts (2002) 101 Cal.App.4th 142.))
Under California law, “sex” is defined broadly. It includes harassment on the basis of a person’s gender, pregnancy, childbirth, or pregnancy-related medical condition. ((Gov’t Code, §§ 12940, subd. (j)(4)(C).)) So, harassing a person on the basis of their gender, even without any sexual motivation, can constitute unlawful sexual harassment.
In fact, courts have been clear that sexual harassment does not need to have anything to do with lewd acts, double entendres, sexual desires, or a sexually-charged atmosphere. ((Miller v. Department of Corrections (2005) 36 Cal.4th 446, 469.)) Under a hostile work environment theory, it can be negative conduct directed at a person due to a characteristic that meets the broad definition of “sex.” ((Accardi v. Superior Court (1993) 17 Cal.App.4th 341, 345.))
If, however, the employee-victim is alleging a quid pro quo theory of sexual harassment, a sexual motive is required. This is because the very nature of a sexually-driven job offer or job threat involves a sexual motive.
Additionally, California law prohibits harassment on the basis of several other unlawful reasons. ((Gov’t Code, § 12940, subd. (j).)) Of course, sexual harassment is one of the most common types of harassment. But it is certainly not the only kind of prohibited harassment. Other types of harassment are not necessarily “sexual harassment,” but they are just as unlawful. A person may not be harassed because of any of the following characteristics:
Because an employee cannot change these characteristics, employees that believe they are the victim of harassment on these grounds must bring their lawsuit alleging hostile work environment harassment.
You do not have to be a woman to be sexually harassed in California. Rather, all genders and gender identities receive protections from sexual harassment in California. California courts have noted that “the Legislature intended to prohibit sexual harassment in all cases,” not just women and not just opposite-sex harassment. ((Mogilefsky v. Superior Court, supra, 20 Cal.App.4th at p. 1416.))
Under the Fair Employment and Housing Act, however, there does need to be some type of employment relationship to bring a claim. For these purposes, job applicants and independent contractors have a sufficient employment relationship. ((Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1050–1051; Gov’t Code, § 12940, subd. (j)(1).)) But people with no working relationship with the business would not have standing to be protected from workplace sexual harassment under FEHA. Non-employees can, however, sue for sexual harassment under the Unruh Civil Rights Act, which prohibits business establishments from discriminating against people on the basis of sex or sexual orientation (among other things). ((Civ. Code, § 51.))
The law is somewhat unclear on the full extent of liability when harassment occurs outside the workplace. Courts, however, have tended to find in favor of the victims of sexual harassment. ((See, e.g., Gov’t Code, § 12993.)) In general, sexual harassment under the Fair Employment and Housing Act is only unlawful if it is work-related. ((Doe v. Capital Cities, supra, 50 Cal.App.4th at p. 1048.)) This term is loaded because conduct can be work-related even if it occurs outside of normal work hours and away from the place of business. ((Id.))
California courts have commented that sexual harassment outside of the worksite will usually still be work-related. ((Myers v. Trendwest Resorts, Inc. (2007) 148 Cal.App.4th 1403, 1424.)) In the case of a supervisor sending sexually-explicit text messages outside of work, the text messages are work-related if the supervisor is acting in the capacity of supervisor when the harassment occurs. ((Ibid.)) This will usually be the case unless the supervisor’s acts of harassment “result from a completely private relationship unconnected with the employment and not occurring at the workplace or during normal working hours.” ((Ibid.))
Both individuals and businesses can be liable for sexual harassment. The word “liable” in this context means that a person can be legally responsible for the unlawful conduct. They can therefore can be sued and made to pay money to the victim.
Individual liability is unique in the context of the Fair Employment and Housing Act. In non-harassment cases, a person must fit the definition of an “employer” to be sued under the Fair Employment and Housing Act. ((Reno v. Baird (1998) 18 Cal.4th 640, 663–664.)) An “employer” under FEHA is any person or business that regularly employs five or more people. ((Gov’t Code, § 12926, subd. (d).)) For sexual harassment purposes, however, FEHA extends liability to “any other person” that harasses an employee or applicant on a prohibited ground. ((Gov’t Code, § 12940, subd. (j).)) FEHA also extends the definition of “employer” for the purposes of harassment to include any person or business that regularly employs one or more employees. ((Gov’t Code, § 12940, subd. (j)(4)(A).))
This means that coworkers, supervisors, and employers can all be liable for their roles in the unlawful harassing conduct. Individuals can be liable even if they are merely aiding and abetting the harassment. ((Gov’t Code, § 12940, subd. (i).))
An employer can also be liable for an employee’s sexual harassment if the employer knows about the inappropriate conduct, or should have known about the inappropriate conduct. ((Gov’t Code, § 12940, subd. (j).)) Employers can also be liable if they fail to take necessary preventive measures prior to or during the sexual harassment. ((State Dep’t of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1040–1041.))
The Fair Employment and Housing Act prohibits two closely related acts: sexual harassment and sex discrimination. ((Gov’t Code, § 12940.)) Although some courts have called sexual harassment a form of sex discrimination, the concepts are actually slightly different. ((Accardi v. Superior Court (1993) 17 Cal.App.4th 341, 348.))
Why is the distinction important? California’s anti-discrimination statute only makes employers liable. ((Gov’t Code, §§ 12926, 12940.)) Individual supervisors or coworkers are generally not liable for discriminatory acts. ((Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 66.)) If unlawful harassment is present, however, individual supervisors and coworkers can be personally liable for their wrongful conduct. ((Gov’t Code, § 12940, subd. (j).)) So, understanding the kind of claim is essential to determining who can be liable.
The difference between these two types of claims is that discrimination usually requires some degree of managerial decision-making, while harassment does not. ((Reno v. Baird (1998) 18 Cal.4th 640, 646.)) California courts have noted that harassment is often done for personal gratification, because of meanness or bigotry, or for other personal motives. ((Id. at pp. 645–646.)) In the case of sexting or sexually explicit messages, the harassment is often motivated by power or a desire to engage in a sexual relationship, even if the possibility of that relationship has been rejected. The harassment, however, is not conduct that is necessary for any managerial purpose or for the performance of a supervisor’s job. ((Ibid.))
Discrimination, on the other hand, necessarily involves a management decision. A person is only the victim of discrimination of they have been demoted, refused a promotion, received a pay cut, refused a raise, or otherwise have been denied some condition or benefit of employment. ((Janken v. GM Hughes Electronics, supra, 46 Cal.App.4th at pp. 64–65.)) Each of these acts involves some exercise of power over the employee and their duties.
Employers have a duty to take all reasonable steps necessary to prevent discrimination and harassment from occurring. ((Gov’t Code, § 12940, subd. (k).)) A business that knows about harassing conduct but fails to put a stop to the conduct can be liable for sexual harassment. It is an employer’s job to provide a harassment-free work environment.
Part of an employer’s duty to prevent sexual harassment from occurring includes an obligation to distribute educational material to their employees regarding sexual harassment law and company procedures. ((Gov’t Code, § 12950.)) The Department of Fair Employment and Housing maintains a sexual harassment information sheet, available here, that employers must obtain and distribute to its employees unless they provide their own equivalent information. ((Gov’t Code, § 12950, subd. (b).))
In addition to the information sheet, the Department of Fair Employment and Housing promulgates an anti-discrimination and harassment poster, available here, that employers must post in a prominent and accessible location in the workplace. ((Gov’t Code, § 12950, subd. (a).))
If the employer has 50 or more employees, they must provide two hours or sexual harassment training to supervisory employees. ((Gov’t Code, § 12950.1, subd. (a).)) This training must take place at least once every two years. ((Id.)) New supervisors must engage in this training within six months of taking their position. ((Id.))
Employers, supervisors, and coworkers can be liable to the victim for several types of damages. In actions under the Fair Employment and Housing Act, victims may seek:
Importantly, the victim of sexual harassment is often not required to show that they suffered any damage as a result of the harassment. ((Gov’t Code, § 12940, subd. (j); Kelly-Zurian v. Wohl Shoe Co. (1994) 22 Cal.App.4th 397, 412.)) The mere act of engaging in sexual harassment, even without any injury to the victim, can be enough to make the harasser liable to the victim.
Under FEHA, there is no ceiling (or statutory maximum) amount of compensatory or punitive damages. Under Title VII, however, there is a cap. So victims of sexual harassment will usually bring their claim under FEHA.
If you are the victim of sexual harassment, there are a number of actions you can take:
No. Under the Fair Employment and Housing Act, California employers may not retaliate against an employee for opposing or complaining of unlawful sexual harassment. ((Gov’t Code, § 12940, subd. (h).)) Employees are therefore protected if they choose to:
If an employer retaliates against an employee for complaining about the unlawful conduct, the employer can be liable for unlawful employment retaliation. ((Sada v. Robert F. Kennedy Medical Center (1997) 56 Cal.App.4th 138, 157.))
Employees should talk with a lawyer as soon as possible if they are the victim of sexual harassment. Victims can have a right to bring a lawsuit that might expire quickly. Under the Fair Employment and Housing Act, a claim of unlawful sexual harassment must be filed with the Department of Fair Employment and Housing (often called the “DFEH”) within one year of the unlawful conduct. ((Gov’t Code, § 12960, subd. (d).)) If a right-to-sue letter is issued by the DFEH, employees then have one year to bring a civil lawsuit. ((Gov’t Code, 12965, subd. (b).))
To assert a sexual harassment claim under Title VII, employees have 300 days from the date of the unlawful act to bring a claim with the Equal Employment Opportunity Commission (often called the “EEOC”). ((42 U.S.C. § 2000e-5, subd. (e)(1).)) If the EEOC issues a right-to-sue letter, the employee must file their civil lawsuit within 90 days, or they could lose their right to sue the harasser. ((42 U.S.C. § 2000e-5, subd. (f)(1).))
Sexual harassment can have a serious impact on an employee’s quality of life. Hostility in the work environment can make a person’s employment unbearable, and the emotional toll can even harm their personal life. Because of these effects, sexual harassment in the workplace is unacceptable.
At the same time, the law is somewhat understanding of the possibility that relationships may develop at work. So long as a power imbalance is not abused and the parties are respectful of each other, coworkers can often express a romantic interest without crossing the line. Critical to this mutual respect, however, coworkers must accept rejection if the other coworker has not indicated interest.
The problem is that many people cross the line. They either don’t respect the space of others, they don’t want to take “no” for an answer, or they incorrectly interpret their behavior as a joke. Employees are not required to endure repeated inappropriate sexual behavior. In many cases, a lawyer can help remedy existing work problems or seek compensation for past harm. If you’re interested in speaking with a lawyer to get a free analysis of your case, give our Los Angeles and Orange County employment lawyers a call at (949) 954-8181.