We have previously written about what to expect from your employer after making a sexual harassment complaint, but how can an employee tell if what she is experiencing at work is sexual harassment? Both California and federal law prohibit sexual harassment in the workplace. The California Fair Employment and Housing Act defines sexual harassment as harassment based on sex or of a sexual nature, gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions. Federal anti-harassment law is derived from Title VII of the Civil Rights Act of 1964, which makes it illegal for an employer “to discriminate against any individual with respect to his [or her] compensation, terms, conditions, or privileges of employment” on the basis of sex. 42 U.S.C. § 2000e-2(a)(1). These laws offer broad protections, but it can sometimes be difficult for an employee to determine if offensive workplace conduct rises to the level of sexual harassment. Below is a guide to help you determine whether you are being sexually harassed at work.
Types of Sexual Harassment
Quid Pro Quo Sexual Harassment
In general, the law prohibits two types of sexual harassment: quid pro quo and hostile work environment. Quid pro quo sexual harassment occurs when requests for sexual favors are linked to the grant or denial of job benefits. A classic example of this is when an employee is offered a benefit at work, such as a promotion, a raise, or a positive performance review, in exchange for a sexual favor. It is also quid pro quo sexual harassment when a supervisor or manager retaliates or threatens to retaliate against an employee—such as by giving her a demotion, negative review, or even terminating her—because she rejects his sexual advances or refuses to engage in sexual conduct.
The essence of quid pro quo harassment is that a supervisor uses or attempts to use his authority to coerce an employee into entering a romantic relationship or engaging in sexual conduct. The coercion or threat can be either express or implied, as long as the individual making the unwelcome advance was the employee’s supervisor, and a link to employment benefits or threats can be inferred under the circumstances. Circumstances indicating quid pro quo harassment could include veiled statements or threats, or the fact that the supervisor persists with sexual requests even after the employee has declined.
Hostile Work Environment Sexual Harassment
Hostile work environment sexual harassment occurs when an employee is subjected to harassment that unreasonably interferes with the employee’s work performance or creates an intimidating, hostile, or offensive working environment. A hostile work environment may involve various forms of verbal and physical conduct and does not require a tangible employment action such as a promotion or demotion, positive or negative performance review, or job transfer. Instead, the elements of a claim for hostile work environment sexual harassment are: (1) the employee was subjected to unwelcome sexual advances, conduct, or comments; (2) the harassment was based on sex; and (3) the harassment was so severe or pervasive as to alter the conditions of the victim’s employment and create an abusive working environment.
While a quid pro quo sexual harassment case almost always involves a supervisor committing the harassment, an employer can be liable for the conduct of supervisors, coworkers, and non-employees—such as the employer’s customers or vendors—in a hostile work environment case. In determining whether inappropriate conduct rises to the level of a hostile work environment, courts generally look at: (1) how often the conduct occurred; (2) the severity of the conduct; (3) whether the conduct involved physical contact or touching; and (4) whether the conduct unreasonably interfered with an employee’s work performance. The more frequent, severe, threatening, or humiliating the conduct is, and the more it interferes with an employee’s ability to do his or her job, the more likely a court will find that the employee has been subjected to a hostile work environment.
Specific Conduct Constituting Harassment
While the list below is not exhaustive, the following are examples of conduct which could constitute sexual harassment:
- Making unwanted sexual advances, asking an employee out on dates, or prying into her personal affairs
- Repeated staring or leering at an employee or parts of her body
- Offering or suggesting that an employee might receive workplace or employment benefits in exchange for sexual favors
- Actual or threatened retaliation for rejecting a harasser’s advances or not complying with sexual requests
- Making sexual gestures, or displaying sexually suggestive objects, pictures, cartoons, or posters
- Making or using derogatory comments, epithets, slurs, or jokes
- Making comments about an individual’s body, clothing, or appearance
- Using sexually degrading words or slurs to describe an employee or women in general
- Sending suggestive or obscene letters, notes, e-mails, text messages, or invitations
- Physical touching or assault, violating an employee’s personal space, or restraining, impeding, or her blocking movement
Sexual Orientation Harassment
California law, unlike federal law, expressly includes harassment based on sexual orientation, gender identity, and gender expression within the definition of sexual harassment. This could include a coworker making derogatory comments, prying into an employee’s personal affairs as they relate to sexual orientation or gender identity or expression, displaying offensive or derogatory pictures, cartoons, or posters, or otherwise contributing to an environment that makes it difficult for the employee to do his or her job. In addition, under California law, sexually harassing conduct need not be motivated by sexual desire. This means that if a supervisor or a coworker is harassing you based on your sexual orientation, gender identity, or gender expression, you could have a claim under the California Fair Employment and Housing Act regardless of whether the harasser is motivated by sexual attraction.
California law also protects women who are pregnant or who have recently given birth from being subjected to a hostile work environment based on pregnancy, childbirth, or related medical conditions. Pregnancy harassment could include repeated derogatory comments related to a woman’s pregnancy, excessive prying or questions about a woman’s pregnancy or related medical condition, or displaying or sending offensive images or messages relating to a woman’s pregnancy. It could also include derogatory comments related to breastfeeding—for example, a woman’s need take breaks to express breast milk after giving birth. A woman who experiences pregnancy harassment that interferes with her ability to perform her job may have a claim under the California Fair Employment and Housing Act.
Employees often express concern that their employers will retaliate against them if they make a sexual harassment complaint or if they assist in a workplace investigation into a harassment claim. Both California and federal law prohibit retaliation against an employee who reports or otherwise opposes prohibited discrimination or harassment in the workplace. Under Title VII and California’s Fair Employment and Housing Act, protected activities include (1) making a charge, testifying, assisting, or participating in any manner in proceedings or hearings, or (2) opposing unlawful acts. Both of these provisions have been interpreted broadly and mean that an employee cannot be fired, demoted, or otherwise retaliated against for engaging in the following activities:
- Making formal or informal complaints to a supervisor or human resources regarding suspected unlawful harassment
- Helping a co-worker make a sexual harassment complaint
- Threatening to file a charge of discrimination or harassment with a government agency
- Testifying in another employee’s harassment or discrimination case or providing information in an interview with a company or government investigator regarding harassment
- Volunteering to testify in another employee’s harassment or discrimination case
- Refusing to obey orders that would constitute discrimination or harassment
Importantly, retaliation is prohibited even if the underlying claim of harassment or discrimination is ultimately unsubstantiated. For the anti-retaliation laws to apply, it is sufficient that the employee making the complaint or opposing unlawful acts has a good faith or reasonable belief that the activity at issue would violate the law.
Our firm represents employees who have experienced sexual harassment, sexual orientation harassment, pregnancy harassment, and retaliation at work. We understand how difficult and sensitive these issues can be, and we work to help employees determine whether they are being subjected to unlawful harassment, and how to handle workplace behavior that makes them uncomfortable. If you believe you are being harassed or retaliated against at work, contact us to speak with an attorney about your options.