What Qualifies as Sexual Harassment at Work?

Sexual harassment at work occurs when conduct of a sexual nature in the workplace is directed toward a person who does not want to be a target of such conduct.

While for many of us mention of sexual harassment in the workplace immediately conjures an image of a man (usually a supervisor) harassing a woman (usually a subordinate), situations that may qualify as sexual harassment at work are far more varied than that.

Unwanted conduct in the workplace of a sexual nature may qualify as sexual harassment regardless of the sex or gender of the harasser or the sex or gender of the victim. For example, if a female employee directs unwanted conduct of a sexual nature towards a male supervisor, this may qualify as sexual harassment at work. What qualifies as sexual harassment at work is not limited by cultural biases as to who is inherently vulnerable to mistreatment and who is not. What qualifies as sexual harassment at work is not limited by the traditional concept of a strong male victimizer and a weak female victim.

Unwanted conduct in the workplace of a sexual nature may qualify as sexual harassment regardless of the sexual orientation or gender identity of the harasser or the sex orientation or gender identity of the victim.

Upon first glance this may seem puzzling. How could a male homosexual employee be found liable for sexually harassing a female coworker? The explanation is that unwanted conduct in the workplace of a sexual nature may qualify as sexual harassment even if the harasser is not motivated by sexual desire. For example, a male heterosexual manager makes mock sexual advances towards a male homosexual subordinate to embarrass and demean the subordinate. Even though the male heterosexual manager's conduct was not motivated by sexual desire, his conduct may qualify as sexual harassment at work. As another example, repeated, offensive comments about women in general directed towards a female employee—or calculated so that the female employee will overhear the comments—may qualify as sexual harassment at work.

Behaviors that may qualify as sexual harassment at work include:

• Physical touching, which includes conduct as diverse as fondling or attempting to cause physical injury
• Using one's body to block or imped a person from moving freely through the workplace
• Making derogatory comments about a person's sex or sexuality, sexual jokes, slurs, and epithets
• Sexually suggestive or obscene messages or invitations, sexually degrading words, or graphic comments of a sexual nature, transmitted by personal interaction, texting, emails, or by other means
• Unwanted sexual advances
• Displaying sexually suggestive posters, drawings, pictures, cartoons, sexually suggestive objects or other visual displays of sexual materials
• Persistent leering or staring or crude or sexual gestures
• Offering or conditioning employment benefits or the continuation of employment benefits—including career advancement, pay or benefit increases, transfer to a more desirable job position or assignment to a preferred work schedule—in exchange for sexual favors.

These behaviors will qualify as sexual harassment at work if they are sufficiently severe or pervasive (e.g. occur frequently enough) to create a hostile, offensive, intimidating, oppressive, or abusive work environment for the person to whom these behaviors are directed, thereby making it more difficult for the victim to do his or her job.

The California Fair Employment and Housing Act (FEHA), (California Government Code section 12900, et seq.) prohibits discrimination both in employment and housing situations based on enumerated protected personal characteristics or classes. Those enumerated protected personal characteristics or classes under FEHA include sex, gender, gender identity, gender expression, and sexual orientation. Discrimination in this context is the unfair treatment of a person because that person is a member of a protected class. Sexual harassment is a form of discrimination based on sex, gender, gender identity, gender expression, or sexual orientation. FEHA furthers the public policy of the State of California that all employees have the right to work in a work environment free of discrimination, harassment, and retaliation.

FEHA prohibits an employer from actually retaliating, or threatening to retaliate, against a worker because he or she rejected sexual advances or complained of sexual harassment that occurred at work. 

FEHA prohibits sexual harassment at work directed towards employees. However, FEHA's prohibition on harassment in the workplace is not limited to harassment directed towards employees.

FEHA prohibits sexual harassment at work directed towards job applicants. All Californians have the right to seek employment without having to suffer sexual harassment. Employers may not condition hiring or advancement in a job application process in exchange for sexual favors or enduring sexual harassment.

FEHA prohibits sexual harassment at work directed towards independent contractors, volunteers, and unpaid interns. FEHA aims to create a harassment-free workplace for all individuals who engage in the workplace.

FEHA prohibits supervisors, managers, coworkers, and employers from engaging in sexual harassment. An employer may even be liable for sexual harassment engaged in by customers or clients of the employer, particularly if the employer knew, or should have known, that the sexual harassment conduct was occurring. The workplace can only be harassment-free if all individuals who enter the workplace are prohibited from engaging in sexual harassment. Depending on the circumstances, both the employer and the individual who engaged in the harassment may be found liable for the sexual harassment. Under FEHA, employers have an affirmative duty to take reasonable steps to prevent sexually harassing conduct from occurring at work and to promptly correct sexual harassment that does occur. To help make the prevention of sexual harassment in the workplace a reality, FEHA now requires employers to develop and distribute to their employees a clear and easy to understand harassment prevention policy.

If you believe you have been unlawfully sexually harassed at work, or if you believe your employer or former employer has otherwise violated your rights, call the experienced employment law attorneys at Kokozian Law Firm, APC or Contact Us via our online form.