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What is the Legal Definition of Sexual Harassment?

By Matt Vild in Posted March 28th, 2019

Woman Being Sexually Harassed at WorkThe behaviors or actions that rise to the level of sexual harassment depends on the facts and circumstances surrounding the incident or incidents. In California, the definition of sexual harassment is behaviors that include unwanted sexual advances, as well as any verbal, visual, or physical conduct of a sexual nature.

Especially in this day and age, it is important to understand the specifics of sexual harassment in order to resolve issues quickly as soon as they arise.

To reduce instances of sexual harassment, the state of California set forth certain requirements that are set to go into effect on January 1, 2020. One of these requirements is that an employer with five or more employees must provide at least two hours of interactive education and training on the topic of sexual harassment to all their supervisory employees.

These employers must also provide at least one hour of interactive education and training on this topic to all employees in nonsupervisory roles within six months of the starting date of their position. This training must also be provided to employees once every two years.

The State also passed legislation effective on January 1, 2019 making it easier for sexual harassment victims to get their cases to a jury rather than having a judge throw them out for “insufficient evidence” before trial. The Legislature amended the Fair Employment and Housing Act to state that ordinarily harassment cases are inappropriate for summary adjudication by a judge and should typically be heard by a jury.

Importantly, the 2019 laws also prohibit companies from entering into secret settlements of sexual harassment claims which require the facts of those claims be kept confidential. This will make it much easier for victims of sexual harassment to find other victims harassed by the same perpetrator to testify as witnesses in your case.

[Source: https://www.dfeh.ca.gov/resources/frequently-asked-questions/employment-faqs/sexual-harassment-faqs/]

What Kinds of Behaviors Encompass Sexual Harassment?

What constitutes sexual harassment may vary depending on the circumstances, but there are certain actions and behaviors that are almost always unacceptable and rise to the level of sexual harassment.

The legal definition of sexual harassment in California includes many different forms of offensive behavior. It also includes instances of gender-based harassment of someone who is the same sex as the harasser.

Behaviors that are generally considered sexual harassment include the following:

  1. Inappropriate physical conduct, such as touching, blocking or impeding movements, and sexual assault;
  2. Verbal conduct, such as making sexually derogatory comments, inappropriate sexual or sexist jokes, comments. epithets, and slurs. This category also includes instances of verbal abuse of a sexual nature, such as sexually degrading words or phrases to describe someone. It may also include situations where someone engages in graphic verbal commentaries about someone else’s body; also rude, demeaning and degrading verbal conduct may constitute sexual/gender-based harassment if directed at women as opposed to men.
  3. Visual conduct, such as making sexual gestures, leering, or even displaying sexually suggestive pictures, posters, or other objects;
  4. Threatening or initiating retaliatory action after getting a negative response to a sexual advance;
  5. Offering benefits in exchange for receiving sexual favors.
  6. Discriminatory conduct such as unfair discipline or performance criticism, when directed at women because they are women, may also constitute gender based harassment as well as discrimination.

What is Quid Pro Quo Sexual Harassment?

The term “quid pro quo” is a Latin term that translates to “something for something.” In the context of sexual harassment, this typically occurs when a supervisor or other authority figure hints or directly offers that he or she will give the employee something positive (like a promotion or a raise) in return for the employee’s satisfaction of the authority figure’s sexual demand.

Quid pro quo sexual harassment also may occur when a supervisor or authority figure agrees not to reprimand or fire an employee if they perform some sort of sexual request or favor.

Quid pro quo sexual harassment may also happen to job applications. A job applicant to the company may be a subject of this type of harassment if the decision to hire them or not was based on their acceptance or rejection of any sexual advances.

Frequently Asked Questions Regarding Sexual Harassment

What is Sexual Harassment (and What Isn’t?)

There are many different forms of sexual harassment in the workplace. Sexual harassment in the workplace is a violation of Title VII of the Civil Rights Act of 1964 and California’s Fair Employment and Housing Act. The following actions may be considered instances of sexual harassment:

  • Unwelcome sexual advances
  • Physical, verbal, or visual conduct that is of a sexual nature
  • Actions that create a hostile work environment based on sex or gender

It is important to take note, however, that not every instance of showing interest in someone in the workplace is automatically considered sexual harassment. For example, generally, it is not sexual harassment for one employee to ask another co-worker out on a date. If they respect the answer if it is no and move on and continue a professional relationship with that co-worker, this would not be considered sexual harassment.

In California, the offensive conduct by one employee need not be motivated by sexual desire. Rather, the conduct can be based on the employee’s actual or perceived gender identity or sex, as well as their actual or perceived sexual orientation. In other words, discriminatory intimidation, ridicule or insult, when directed at a women because she is a woman, is actionable sexual harassment. Similarly, direct sexual language and jokes that a reasonable woman would perceive as sexually offensive, may constitute sexual harassment even if the harasser himself was not motivated by sexual desire. The test is whether a reasonable women, in the same or similar circumstances, would find the conduct or comments sexually offensive, not whether the man making those comments or engaging in the conduct was actually motivated by sexual desire.

The definition of sexual harassment under California law includes a wide variety of forms of conduct and includes gender-based harassment of someone of the same gender.

What Are the Different Types of Sexual Harassment?

In California, what exactly is considered sexual harassment depends on the facts and circumstances of the alleged conduct; however, there are many different types of sexual harassment.

One type of sexual harassment is called quid pro quo harassment, which means promising things like promotions and raises in exchange for sexual favors. Another form of sexual harassment is someone making unwanted sexual advances or comments. Additionally, acting in a manner that creates a hostile work environment for someone else may be an additional form of sexual harassment.

What is the EEOC?

The EEOC is the United States Equal Employment Opportunity Commission. Its role is to enforce the federal laws that make it illegal to discriminate against employees or job applicants for many reasons, including individuals who have initiated complaints regarding sexual harassment in the workplace.

Under certain circumstances, the EEOC has the authority to file lawsuits to attempt to resolve discrimination issues. [Source: https://www.eeoc.gov/eeoc/]

The Feldman Browne Olivares firm has been at the forefront of the #MeToo movement, recovering tens of millions of dollars on behalf of the victims of sexual assault, gender bias and sexual harassment, including more than $70,000,000 since the Harvey Weinstein scandal broke two years ago. If you would like to speak to a leading, Los Angeles based employment attorney, contact Feldman Browne Olivares now for a free consultation.

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March 28, 2019