Overview of California Law on Sexual Harassment

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The California Fair Employment and Housing Act ("FEHA"), Government Code §12940(J)(1) prohibits "an employer…or any other person, because of …sex…to harass an employee…."   The Fair Employment and Housing Commission, which is authorized to adopt and promulgate regulations to interpret and implement the FEHA, defines "harassment" as including, but not limited, to:

  • (A) "Verbal harassment, e.g., epithets, derogatory comments or slurs on a basis enumerated in the Act;
  • (B) Physical harassment, e.g., assault, impeding or blocking movement, or any physical interference with normal work or movement, when directed at an individual on a basis enumerated in the Act;
  • (C) Visual forms of harassment, e.g., derogatory posters, cartoons, or drawings on a basis enumerated in the Act; or
  • (D) Sexual favors, e.g., unwanted sexual advances which condition an employment benefit upon an exchange of sexual favors."

2 Cal. C. Regs. § 7286.6.  Additionally, case law further supports this definition.

The law recognizes two types of sexual harassment: "quid pro quo" and "hostile sexual environment." Weeks v. Baker & McKenzie (1998) 63 Cal. App.4th 1128, 1146.

Harassment takes the form of economic quid pro quo where a supervisor’s requests for sexual favors are linked to the grant or denial of job benefits.[1]  29 CFR § 1604.11(a);  Meritor Sav. Bank, FSB v. Vinson (1986) 477 U.S. 57, 65.  Hostile environment harassment is present when sexual conduct, including unwanted sexual advances and other conduct such as sexual jokes and/or innuendos, is “sufficiently pervasive so as to alter the conditions of employment and create an abusive work environment.”  Mogilefsky v. Superior Court (1993) 20 Cal. App.4th 1409, 1414.  A plaintiff must show that the unwelcome conduct based on sex unreasonably interfered with her job performance or created an intimidating, hostile or offensive working environment.  See Aguilar v. Avis Rent A Car Sys., Inc., (1999) 21 Cal.4th 121, 130 [(approving federal law defining hostile work environment]; 29 CFR §1604.11(a)(3).  Whether such conduct was "sufficiently pervasive" as against a female plaintiff is judged under a "reasonable woman" standard.  Fisher v. San Pedro Peninsula Hosp. (1989) 214 Cal. App. 3d 590, 609.

It is also well settled that a hostile working environment may by created by sexual conduct or remarks from either supervisors, coworkers, or nonemployees (such as clients).  Gov. Code § 12940(J)(1); Folkerson v. Circus Circus Enterprises, Inc., (9th Cir.  1997) 107 F.3d 754, 756.  The California Supreme Court has defined "harassment" simply as "conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives."  Reno v. Baird (1998) 18 Cal.4th 640, 645.

An employer, however, is strictly liable for sexual harassment by a supervisor.  State Dept. of Health Services v. Superior Court (2003) 31 Cal. 4th 1026, 1042.

[1] The California Supreme Court has defined "harassment" simply as "conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives."  Reno v. Baird (1998) 18 Cal.4th 640, 645.

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