Sexual harassment is unlawful under federal and state statutes. You may have heard the expression that distinction between sexual harassment and no sexual harassment is dependent on the attractiveness of the perpetrator and to a large extent this is true. If the conduct or environment is sexual in nature and it is unwanted then it is sexual harassment.
There is a difference between sexual harassment and gender based discrimination. Gender based discrimination and sexual harassment are not the same thing, and a claimant can have a gender based discrimination claim as well as a sexual harassment claim. Under California law sexual discrimination requires the claimant prove a tangible job related benefit has been lost. The claimant must show there was discrimination in compensation, or terms, or conditions, or privileges of employment. In a sexual harassment claim, the claimant is not required to prove a loss of a tangible benefit. Also, keep in mind that neither sexual harassment nor gender based discrimination is limited to claims by women. Men likewise are protected and can also make claims. Men generally do not make claims, for fear of embarrassment or other personal reasons, but they are just as likely to be harassed as women are.
California law also specifically requires employers to take affirmative action to prevent sexual harassment on the basis of sex or sexual orientation. Federal law does not protect against harassment, because of someone’s sexual orientation, but California specifically prohibits sexual harassment because of someone’s sexual orientation, therefore gays and lesbians are specifically protected and any type of sexual harassment against these groups is unlawful.
The federal statutes and courts defined sexual harassment one way and the State of California defines in a different way. The California Supreme Court has defined harassment as conduct that is outside the scope of the necessary job performance, conduct that is presumably engaged in for the perpetrators owns personal gratification, or because of meanness, or because of bigotry, or because of other personal motives.
The California Fair Employment and Housing Commission has been authorized to adopt and promulgate regulations to interpret the statute that addresses sexual harassment. The department of Fair Employment and Housing has defined three different kinds of sexual harassment. There is verbal harassment, there is physical harassment, and there is visual harassment. Verbal harassment includes epithets, derogatory comments or slurs, repeated romantic overtures, sexual comments and jokes, or prying into another’s personal affairs. Meaning an individual cannot comment about another persons physical characteristics, cannot repeatedly ask another person for dates, cannot make dirty jokes, cannot ask about another’s sexual activity or personal plans for the evening or the weekend.
Physical sexual harassment includes unwanted touching, rubbing against someone, assault and physical interference with movement or work. Among other things a co-employee or supervisor cannot touch another, cannot rub his body another, block another’s path, restrict another’s movement, or sit on someone’s desk to prevent them from doing work.
Assault means threatened contact with another person with the perpetrators body or an object in possession or control of the perpetrator. Visual harassment includes derogatory cartoons, drawings or posters, lewd gestures or leering. Another employee cannot have cartoons that are sexual in nature whether explicit or implicit regardless of whether is written expression or drawings. Leering has been deemed to constitute sexual harassment, looking at women’s crotches or men’s crotches, or women’s breasts for prolonged periods of times, would be sufficient to constitute sexual harassment. Keeping a collection of centerfolds or sexual cartoons on the walls would constitute sexual harassment.
Sexual harassment covers virtually everyone. The Fair Employment and Housing Act exempts nonprofit hospitals and health care facilities owner or affiliated by religious organizations from some requirements, but not from sexual harassment.
Under California law sexual harassment as well as retaliation is prohibited. Meaning if someone files a complaint for sexual harassment, and after investigation it turns out the accusations or claims are erroneous, the person cannot be retaliated against. Meaning you cannot fie someone that files or makes a complaint for sexual harassment it would lead to a valid complaint for wrongful termination. California law also protects independent contractors providing services in accordance with a contract, and also it protects job applicants.
California law also differs significantly on coverage based on number of employees, under California law sexual harassment applies to all employers, as compared to discrimination laws which apply only to employers with five or more employees, and federal laws which applies to employers with 15 or more employees.
The employer becomes liable for sexual harassment, because of if what is called vicarious liability, meaning the employee, supervisor, manager, or officer is acting for the employer. Therefore the actions of the employee are the actions of the employer. If the harassment resulted in an adverse employment action against the employee, the employer is automatically vicariously liable under the theory of vicariously liability, if not the employer may have a defense.
There are many exceptions that make an employer liable and that provide a defense for employer, but the best way to determine it a claimant has a claim or a employer has a defense is to consult an attorney. Sexual harassment is a very broad area of law entailing may different details. There are means of minimizing the risk to the employer and every employer should be familiar with this area of law, since it covers every employer in California. All employers should consider proving training or seminars from an attorney for all employees regardless of the size of the organization.