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Sexual Harassment
Both California and Federal law prohibit sexual
harassment. The California Fair Employment and Housing Act defines
harassment because of sex as including sexual harassment, gender
harassment, and harassment based on pregnancy, childbirth, or related
medical conditions.
The California Fair Employment and Housing Commission regulations define
sexual harassment as unwanted sexual advances, or visual, verbal or
physical conduct of a sexual nature. This definition includes many forms
of offensive behavior and includes gender-based harassment of a person
of the same sex as the harasser.
The following is a partial list of conduct deemed by the California Fair Employment and Housing Commission
to be violations of the California Fair Employment and Housing Act:
- Unwanted sexual advances
- Offering employment benefits in exchange for sexual favors
- Making or threatening reprisals after a negative response to sexual
advances
- Visual conduct: leering, making sexual gestures, displaying of
suggestive objects or pictures, cartoon or posters
- Verbal conduct: making or using derogatory comments, epithets, slurs,
and jokes
- Verbal sexual advances or propositions
- Verbal abuse of a sexual nature, graphic verbal commentaries about an
individual's body, sexually degrading words used to describe an
individual, suggestive or obscene letters, notes or invitations
- Physical conduct: touching, assault, impeding or blocking movements
The three most common types of sexual harassment
complaints filed with the California Department of Fair Employment and
Housing are:
An employee is fired or denied a job or an employment benefit because
he/she refused to grant sexual favors or because he/she complained about
harassment. Retaliation for complaining about harassment is illegal,
even if it cannot be demonstrated that the harassment actually occurred.
An employee quits because he/she can no longer tolerate
an offensive work environment, referred to as a "constructive discharge"
harassment case. If it is proven that a reasonable person, under like
conditions, would resign to escape the harassment, the employer may be
held responsible for the resignation as if the employee had been
discharged.
An employee is exposed to an offensive work environment.
Exposure to various kinds of behavior or to unwanted sexual advances
alone may constitute harassment. Federal law (Title VII of the Civil
Rights Act of 1964) also prohibits sexual harassment. Title VII applies
to employers with 15 or more employees, including state and local
governments. It also applies to employment agencies and to labor
organizations, as well as to the federal government.
The Equal Employment Opportunity Commission ("EEOC") regulations define
sexual harassment to include unwelcome sexual advances, requests for
sexual favors, and other verbal or physical conduct of a sexual nature
constitute sexual harassment when this conduct explicitly or implicitly
affects an individual's employment, unreasonably interferes with an
individual's work performance, or creates an intimidating, hostile, or
offensive work environment.
The EEOC recognizes that sexual harassment can occur in a variety of
circumstances, including but not limited to the following:
- The victim as well as the harasser may be a woman or a man.
- The victim does not have to be of the opposite sex.
- The harasser can be the victim's supervisor, an agent of the employer, a
supervisor in another area, a co-worker, or a non-employee.
- The victim does not have to be the person harassed but could be anyone
affected by the offensive conduct.
- Unlawful sexual harassment may occur without economic injury to or
discharge of the victim.
- The harasser's conduct must be unwelcome.
You can
learn more about sexual harassment by visiting the following websites
and/or reading the following documents
by clicking on them:
California Department of
Fair Employment and Housing
Equal Employment
Opportunity Commission
EEOC Policy Guidance on Current Issues of Sexual
Harassment
EEOC
Enforcement Guidance: Vicarious Employer Liability
for Unlawful Harassment by Supervisors
EEOC Policy Guidance on Employer
Liability under Title VII for Sexual Favoritism
EEOC Questions & Answers for Small
Employers on Employer Liability for Harassment by Supervisors
Even more information about sexual
harassment can be obtained from our book --
Litigating Employment Discrimination Cases (James
Publishing, 2005 - 2008).
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