Sexual Harassment

A California Employer’s Guide to Sexual Harassment

Sexual harassment is prohibited under both state and federal law. The differences between state and federal law may be important if your business is faced with a lawsuit because there are some important differences in terms of liability. However, the aim is to avoid any conduct that could create potential liability in the first place.
Sexual harassment can include such conduct as asking for sexual favors, sexual touching, or offensive language. Not all sexual conduct in the workplace is illegal “sexual harassment.” Generally, the conduct must be so frequent or severe that it creates a hostile or offensive work environment or results in an adverse employment decision (such as a firing).
Sexual harassment can include conduct showing hostile treatment toward someone based on that person’s gender. Sexually harassing conduct does not need to be motivated by sexual desire.

Sexual Harassment Defined

Title VII of the Civil Rights Act of 1964 (Title VII) is the federal law that prohibits sexual harassment. It states:

It shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.

The Equal Employment Opportunity Commission enforces federal prohibitions against sexual harassment. The EEOC defines “sexual harassment” as “unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature." Conduct may constitute sexual harassment when:

It is an employment condition (submission to sexual conduct is made a term or condition of employment)
It is an employment consequence (submission to or rejection of sexual conduct is used as a basis for employment decisions affecting individuals)
It is an offensive job interference (the conduct unreasonably interferes with an employee’s work performance or creates an intimidating, hostile or offensive work environment)

In California, sexual harassment laws are part of the Fair Employment and Housing Act. The DFEH enforces FEHA. Sexual harassment is defined to include:

Verbal harassment, such as epithets, derogatory comments or slurs
Physical harassment, such as assault or physical interference with movement or work
Visual harassment, such as derogatory cartoons, drawings or posters

Important Notes About Sexual Harassment in California: FEHA considers unwelcome sexual advances of an employer toward an employee of the same sex and harassment on the basis of pregnancy disability as unlawful sexual harassment under FEHA. FEHA also prohibits unlawful harassment on the basis of gender identity or gender expression. FEHA defines "sex" as including pregnancy, childbirth, breastfeeding, and related medical conditions. The definition of harassment under FEHA specifically clarifies that sexually harassing conduct does not need to be motivated by sexual desire to be considered unlawful.

Relationships and Sexual Harassment

Independent Contractors: FEHA protects independent contractors from sexual harassment and from harassment on the basis of belonging to all other classes that FEHA protects. It is illegal to harass an independent contractor on the basis of that person’s race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age or sexual orientation. If a hiring entity knew or should have known that another employee, other than a supervisor, was harassing an independent contractor, and the hiring entity did not take immediate and appropriate corrective action, the hiring entity may be held liable for the sexual harassment. A hiring entity must take all reasonable steps to prevent harassment from occurring. The law does not specify your level of liability when an employer’s agent or supervisor harasses an independent contractor. California courts have held employers strictly liable for sexual harassment of an employee by a supervisor. However, it is unknown if strict liability extends to the person who supervises or approves the contractor’s work if the person sexually harassed an independent contractor.

Professional Relationships: Sexual harassment can also occur in the course of a business, service or professional relationship in which a client or customer is sexually harassed. The California Civil Code covers the following professional relationships:

Doctor/patient
Attorney/client
Real estate agent/client
Landlord/tenant
Teacher/student
Other similar relationships

Harassment can occur when the relationship in which the client or customer cannot terminate the relationship without suffering economic loss, disadvantages or personal injury. Under the professional relationship sexual harassment law, verbal, visual and physical conduct of a sexual nature are covered forms of sexual harassment. The victim is not required to ask the harasser to stop the offensive conduct to be entitled to seek a legal remedy. The law covers emotional distress injuries, as well as violations of statutory and constitutional rights. Victims of professional relationship sexual harassment can seek traditional discrimination remedies.

Romantic Relationships & Favoritism: A California Supreme Court case, Miller v. California Department of Corrections, involved two female employees at a prison who claimed that the warden engaged in sexual affairs with several female employees. The plaintiff alleged that these employees received promotions, favorable assignments and other rewards. They sued for sexual harassment and retaliation under FEHA. The trial court and the Court of Appeal rejected their claims because the same disadvantages were experienced by all employees, male or female, who were not sexually involved with the warden. Moreover, the warden did not engage in improper sexual conduct toward either of complaining employees. The California Supreme Court disagreed. Extensive sexual favoritism in a workplace can create a hostile work environment in which female employees can reasonably conclude that management views them as “sexual playthings” or that women must engage in sexual conduct with their supervisors to receive favorable treatment.

The Two Types of Sexual Harassment

Quid pro quo (literally, “this for that”) is the more easily recognized type of sexual harassment defined by the courts. Quid pro quo sexual harassment typically occurs when a person who has the power to influence an employment decision or condition seeks a sexual favor in return for a positive outcome. The common example is when a supervisor demands that an employee consent to some form of sexual behavior to receive an employment benefit or to continue employment. Quid pro quo harassment occurs when “submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual.

Hostile work environment sexual harassment is sometimes more subtle and difficult to recognize than quid pro quo sexual harassment. Hostile environment sexual harassment occurs when sexual jokes, suggestive remarks, cartoons, physical interference with movement (such as blocking a person or following a person) and sexually derogatory comments create an offensive working environment. Hostile environment sexual harassment does not target an employment benefit or continued employment. Supervisors, co-workers and non-employees can commit hostile environment sexual harassment.

Mitigating Employer Liability: Good Faith Investigations

In Cotran v. Rollins Hudig Hall International Inc. the California Supreme Court ruled that a jury does not decide if misconduct actually occurred in a wrongful termination case that is brought by an employee who was terminated for engaging in sexual harassment. According to the court, the employer must act in good faith and conduct an appropriate investigation. At the time that the employer made the decision to terminate the employee, if the employer had reasonable grounds to believe that the employee had engaged in sexual harassment, termination for sexual harassment is not wrongful. In this case, two female employees reported having been harassed by a supervisor named Cotran. The company informed Cotran that an investigation would be conducted, explained the process and asked for any witnesses he wished to have interviewed. Cotran was suspended for the two weeks of the investigation. All witnesses identified by the subjects of the harassment and by Cotran were interviewed. The investigator concluded that it was more likely than not that sexual harassment had occurred and Cotran was terminated. The trial court ruled that, as a matter of law, there existed an implied contract not to terminate Cotran without just cause. The trial court also instructed the jury that the employer had just cause to terminate Cotran only if Cotran actually engaged in sexual harassment. Upon appeal, the appellate court ruled that since there was no formal written employment contract, it was up to a jury to decide whether there was an implied contract to discharge only for just cause. If there was an implied contract, the jury did not need to find that Cotran had actually engaged in sexual harassment to conclude the employer had “just cause” to terminate Cotran. The jury had only to decide whether the employer had a fair and honest or good faith belief that Cotran had engaged in sexual harassment. The California Supreme Court reviewed the case to clarify the standard that juries should use to evaluate an employer’s just cause defense in wrongful termination cases. According to the court, the correct question for the jury is: Did the employer terminate the employee based on facts that were reached honestly or in good faith after an appropriate investigation, for reasons that were not arbitrary or pretextual? The court did not determine what constitutes an adequate investigation. That must be determined in each case. The Cotran decision reinforces the need for trained investigators and for conducting an immediate and reasonable investigation when an employee is accused of sexual harassment. Employees who have been terminated for engaging in sexual harassment often file wrongful termination claims. The jury question that the court established in this case will make it easier for employers to win wrongful termination cases, but only if they conduct a reasonable investigation.