California discrimination: sexual harassment at work is against the law

Posted in Articles on June 2, 2017

Californians are protected in the workplace from offensive behavior of others that constitutes illegal sexual harassment under California and federal laws. Many different behaviors and circumstances have been found to constitute unlawful sexual harassment in employment.

California state law requires employers to take “all reasonable steps” to prevent the occurrence of sexual harassment at work, including some required information sharing and training.

The California Fair Employment and Housing Act, known as FEHA, provides the basis in state law for a sexual harassment claim against an employer. California courts and state agencies look to similar federal civil rights laws and their interpretations by courts and the federal Equal Employment Opportunity Commission or EEOC for additional guidance.

Prohibited sexual harassment

FEHA forbids employers and other similar entities from harassing employees, job applicants or contractors based on not only on sex or gender, but also on gender identity, gender expression or sexual orientation. (A recent legislative amendment also expands these protections to unpaid interns or volunteers.)

Harassment under FEHA based on “sex” includes “sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions.” Same-sex sexual harassment is also forbidden. State regulations provide examples of what can constitute harassment:

  • Verbal, including “epithets, derogatory comments or slurs”
  • Physical, including “assault, impeding or blocking movement, or any physical interference with normal work or movement”
  • Visual, including “derogatory posters, cartoons, or drawings”
  • Requests for sexual favors in exchange for employment benefits like promotions, raises or assignments (so-called quid pro quo harassment)

Actionable sexual harassment does not require that the victim lose “tangible job benefits,” nor must the perpetrator have “sexual desire.”

Hostile work environments

A common type of sexual harassment is based on a hostile work environment in which the atmosphere creates a sexually inappropriate and abusive work atmosphere. Over time, court cases and government agency interpretations have clarified that isolated remarks or actions are not normally enough to create such an unlawful atmosphere, but rather that the unwelcome, inappropriate behavior that creates a hostile environment must usually be repeated, severe and pervasive, considering the particular circumstances.

A California employer is liable if it, its agents or supervisors commit sexual harassment. If the harassment is carried out by lower level employees or colleagues, or by some nonemployees over which the employer has sufficient control, the employer must take immediate “appropriate corrective action” if it knew of the behavior or should have known of it. (The harassing individual is also personally liable.)

Seek out experienced California legal counsel

The civil rights laws forbidding sexual harassment at work are extremely complex, including many deadlines and procedural choices involving federal and state agencies and courts. In order to understand options and requirements, any Californian who feels they have been subject to sexual harassment at work should discuss his or her situation with a knowledgeable California employment discrimination attorney like one at Winer, McKenna & Burritt, LLP, with offices in the San Francisco area and in Southern California.