Under California employment law, "workplace sexual harassment" can mean either of the following: 1) “quid pro quo” sexual harassment, in which a supervisor attempts to “trade” preferential treatment at work for sexual favors, or 2) a hostile work environment, in which unwelcome severe or pervasive sexual advances or comments have a drastic impact on the work environment.
The basic law prohibiting sexual harassment in California workplaces is the Fair Employment and Housing Act (also known as the FEHA), Government Code 12940 GC.1
But California courts have refined the legal definition of sexual harassment through consideration of harassment lawsuits filed by employees against employers and/or coworkers.2
Not everything “sexual” in the workplace rises to the level of “sexual harassment.” Below, our California employment and sexual harassment lawyers discuss the following:
- 1. What is the Legal Definition of Sexual Harassment in California?
- 2. What is “Quid Pro Quo” Sexual Harassment under California Employment Law?
- 3. What Counts as a “Hostile Work Environment” under California Harassment Law?
- 4. Can Sexual Harassment Occur Between Members of the Same Gender?
- 5. Does Sexual Harassment Have to Involve a Supervisor or Boss?
- 6. Does a Person Have to Be an Employee to Have a Claim for Sexual Harassment?
If, after reading this article, you have further questions, we invite you to contact the California labor and employment attorneys at Shouse Law Group.
The basic legal definition of sexual harassment in California employment law divides sexual harassment into two categories:
- “Quid pro quo” harassment, in which a term of employment is made conditional upon an employee's acceptance of a supervisor's unwelcome sexual advances; and
- “Hostile work environment” harassment, in which someone's inappropriate and unwelcome sexual conduct—which may not involve direct sexual advances--creates an abusive work environment for an employee.3
Both “quid pro quo” harassment and “hostile work environment” harassment require that sexual conduct be unwelcome.
If an employee actually welcomes sexual advances or comments by a supervisor or coworker, there is no “sexual harassment” under the FEHA/Government Code 12940 GC. (But this can be difficult to prove, because it is about the employee's subjective experience, rather than his or her outward actions.)
Example: Pauline gets a job at Ted's small real estate sales and development company. Before long, Ted asks Pauline out for a dinner date, and she accepts. The two of them then begin a sexual relationship.
Shortly after Ted and Pauline begin dating, Ted promotes her to vice-president of the company, with significantly higher pay than her previous position.
A year later, Ted breaks up with Pauline—but she continues in her position as vice-president.
If Pauline then decides to accuse Ted of sexual harassment, she is unlikely to have a valid claim under Government Code 12940. This is because his romantic advances toward her were not unwelcome.
Sexual harassment is one of the most active areas of California employment discrimination law. In 2015, over 20% of all employment discrimination complaints received by California's Department of Fair Employment and Housing involved sexual harassment.4
An employee might have a valid sexual harassment complaint based on quid pro quo sexual harassment if a supervisor says or suggests that, if an employee wants to gain an advantage or avoid a negative situation at work, that employee needs to perform a sexual service.5
The legal required elements of a claim or lawsuit for quid pro quo sexual harassment under the FEHA/California Government Code 12940 GC are:
- The employee received unwelcome sexual advances, demands, or comments;
- The sexual advances came from a supervisor (either the employee's immediate supervisor, or a supervisor or manager with higher authority than the employee's own supervisor); and
- If the employee refused to submit to the supervisor's sexual demands, a tangible employment action (refusing a promotion, firing or demoting the employee, etc.) resulted from that choice.6
The “quid pro quo” element—that is, the conditioning of a beneficial employment outcome on sexual behavior—can be either explicit or implied.7
Example: Anna, a busy film producer, hires Vladimir, a recent college graduate, to be her personal assistant.
One night when Vladimir is accompanying Anna on a business trip, she calls his hotel room and asks him to come to her room and watch a pornographic movie with her. He hesitates, and she tells him that men who enjoy porn make more money working for her than those who don't.
Anna's statement can be seen as an implied promise to give Vladimir a raise if he watches a sexual movie with her. Thus, it probably qualifies as quid pro quo sexual harassment.
Example: Steve and Layla are both lawyers at a busy firm. They are roughly equal in seniority and are working together on a busy trial team.
One night when she is working late at the office, Layla realizes she may not be able to complete an important court filing by the deadline unless she can find someone to help her with some legal research. She knows Steve is also working late and asks him for help.
Steve tells Layla that he'll help her out if she will do him a favor—and then he asks her to perform oral sex on him. Layla is horrified and refuses. Steve then says that she is on her own and he will not help her with the filing.
Layla does not have a quid pro quo sexual harassment claim because Steve is not her supervisor.
Perhaps the most important element of a claim or lawsuit under Government Code 12940 for quid pro quo sexual harassment in California is the third one listed above. A supervisor who threatens negative employment consequences if an employee refuses his/her sexual advances must actually follow through on that threat.8
The employee in a quid pro quo sexual harassment suit also needs to be able to prove that there is a causal relationship between his/her refusal of the sexual advances and the negative employment consequence.
What is a supervisor threatens to punish an employee who refuses his/her sexual advances—but does not make good on that threat? In that case, the employee won't have a claim for quid pro quo sexual harassment—but s/he may be able to allege “hostile work environment” sexual harassment as described in the next section.9
The “hostile work environment” theory of harassment is quite different from the “quid pro quo” theory of harassment under California labor and employment law.
Under the “hostile work environment” theory of harassment, an employee has a sexual harassment claim against an employer if:
- The employee is the recipient of unwelcome advances, conduct or comment;
- This harassment is in some sense based on his/her sex; and
- This harassment is either severe or pervasive enough to alter the conditions of employment and create a hostile work environment.10
The most crucial requirement for an FEHA claim based on “hostile work environment” harassment is that the sexual advances, comments, or conduct must be either “severe” or “pervasive.” (It does not have to be both.)
A hostile work environment under California sexual harassment law is NOT created by behavior that is
- sporadic or
To cite a few examples:
- An office worker politely asks an intern for a dinner date. She declines, telling him she has a boyfriend. This type of incident is not severe enough to constitute sexual harassment.
- That same office worker then proceeds to ask the intern to have dinner or a drink with him via office email every day or so. Each time, he “jokingly” asks if she has broken up with her boyfriend yet. This type of behavior may be pervasive enough to create a hostile work environment sexual harassment claim.
- A male firefighter makes sexual advances toward a female firefighter at their firehouse. When she resists, he angrily pushes her into the wall, leaving her with bruises on her arm and back. This incident may be severe enough to be hostile work environment sexual harassment in California.12
Note that HWE sexual harassment does not actually have to be based on sexual activity or attraction.13 Government Code 12940(j) GC clearly states that “sexually harassing conduct need not be motivated by sexual desire.”14
For example, if a man continually directs non-sexual “hostile” remarks or behaviors toward women, but not toward men, those women may have a valid gender-based harassment claim.
(In fact, hostile work environment does not need to be sex-based at all. California harassment law also prohibits non-sexual workplace harassment on the basis of categories like race, religion, national origin, disability, and age.)
Sexual favoritism and hostile work environment sexual harassment
As we discussed above, under California's Fair Employment and Housing Act, sexual advances by a supervisor toward an employee that are welcome cannot support a sexual harassment claim based on a quid pro quo theory of harassment. But when a supervisor
- engages in sexual relationships with certain employees and
- seems to treat those employees more favorably than others,
then other employees of the same gender may have a valid “hostile work environment” claim under California sexual harassment law.15
Example: Kirk runs a department of a government agency. Over a five-year period, he has sexual affairs with three female employee.
These affairs are not kept secret and are even flaunted at work. Those three female employees receive raises and promotions from Kirk that don't seem to be justified by their qualifications or job performance.
Other female employees in their department may have a valid sexual harassment claim under the California FEHA, because Kirk's “sexual favoritism” may be creating a hostile work environment for them.16
Some people think that “sexual harassment” under California labor law has to involve a harassment claim by a woman against a man, or a man against a woman. But in fact it is possible to be sexually harassed by a member of the same sex.17
Examples of viable claims under the FEHA for sexual harassment by a member of the same sex include:
- A male employee alleging that his homosexual supervisor threatened to fire him if he did not engage in sexual activity with him (quid pro quo harassment);18 and
- A male employee alleging that other male employees regularly made crude and explicit jokes about his sexuality, with a strong suggestion that they thought he was gay (hostile work environment sexual orientation harassment).19
As any knowledgeable California labor and employment lawyer will tell you, California sexual harassment law is responsive to the complexities of sexual and gender identities in today's workplace. The simplistic image of a male supervisor demanding sexual favors from a female employee is no longer the only kind of sexual harassment that courts understand.
Sexual harassment under California's Fair Employment and Housing Act, Government Code 12940(j), does NOT need to be committed by a supervisor or boss.
Any of the following individuals can commit workplace sexual harassment under California labor law:
- Coworkers; and
- In some cases, nonemployees.
Sexual harassment by supervisors vs. sexual harassment by coworkers
For quid pro quo harassment, discussed above, a supervisor or other person who can make decisions about the harassed employee's terms of employment must be involved. But hostile work environment harassment can be committed by fellow employees/coworkers as well.20
But there is one crucial difference between a hostile work environment sexual harassment claim involving supervisors and one involving coworkers.
If the harasser is a supervisor, and sexual harassment is found to have occurred, then the employer is liable for damages in the harassment suit--regardless of whether the employer's behavior was negligent or deficient in any way.21 (For this reason, it is important that all California employers make themselves aware of important measures they can take to prevent harassment in the workplace.)
But if the harassment is by a mere coworker or coworkers of the person who was harassed, then the employer is only liable for damages under California employment law if it was negligent—that is, if the employer knew or should have known about the harassment, but failed to take appropriate corrective action.22
If the employer was not negligent, then the harassed employee may sue his/her harassers as individuals—but not the employer.
Responding properly to a sexual harassment claim by an employee is one of the best ways for employers to avoid liability for sexual harassment committed by one coworker against another.
Sexual harassment by nonemployees
Under California's Fair Employment and Housing Act, even nonemployees can commit sexual harassment for which an employer can be held liable.23 For example, an employer can be liable for sexual harassment if an employee is harassed by:
- A client or customer,
- A tradesperson doing work at the employer's location, or
- An independent contractor providing services to the employer.
However, for an employer to be liable under labor law for sexual harassment by a nonemployee, both of the following must be true:
- The employer knew or should have known about the harassment; and
- The employer failed to take immediate and appropriate corrective action.24
When California courts consider cases of sexual harassment by nonemployees, they will take into account the extent of the employer's control over the nonemployee and other legal responsibility the employer might have had for the nonemployee's behavior.25
Example: Mary is a new associate at a personal wealth management firm that serves high-profile clients. After she meets with one of her clients, a well-known movie actor, he invites her to a pool party at his house that weekend.
Mary attends the party and finds that all the female guests are swimming and spending time in the hot tub nude. When the actor greets her, he suggests she take off her bathing suit and join the others. Mary hesitates, but the actor says, “Oh, come on. I'd hate to lose you as a financial advisor.” So she agrees.
Back at work on Monday, Mary tells Teresa, a coworker, about the party. Teresa tells Mary that this has happened to other women at their firm before and everyone knows about it. Mary then tells a male supervisor, whose only comment is that he's glad she attended the party since it will help the firm's relationship with the client.
Mary may have a claim for sexual harassment based on the client's behavior—and her employer's tolerance of it.
California sexual harassment law, Government Code 12940 GC, doesn't only protect employees from harassment. It also applies to:
- Job applicants;
- Unpaid interns;
- Volunteers; and
- People providing services pursuant to a contract.26
In other words, California's Fair Employment and Housing Act provides for potential sexual harassment claims for any harassment that occurs in the workplace—even if the person being harassed is not an employee of the company or organization against which the claim is filed.
In addition, California Civil Code 51.9 provides a right to sue to people who are the victim of sexual harassment in professional relationships--that is, people who are harassed by someone like a doctor, attorney, teacher, therapist, etc. This law applies only to professional relationships that are not easy to terminate and uses the same definition of sexual harassment as the FEHA.27
Call us for help....
For questions about the legal definition of sexual harassment in California under California's Fair Employment and Housing Act, or to discuss your case confidentially with one of our skilled California labor and employment attorneys, do not hesitate to contact us at Shouse Law Group.
We have local employment law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
- Government Code 12940 GC -- Employers, labor organizations, employment agencies and other persons; unlawful employment practice; exceptions [California sexual harassment law]. (“It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California: . . . (j)(1) For an employer, labor organization, employment agency, apprenticeship training program or any training program leading to employment, or any other person, because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, to harass an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract. Harassment of an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract by an employee, other than an agent or supervisor, shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action. An employer may also be responsible for the acts of nonemployees, with respect to sexual harassment of employees, applicants, unpaid interns or volunteers, or persons providing services pursuant to a contract in the workplace, where the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing cases involving the acts of nonemployees, the extent of the employer's control and any other legal responsibility that the employer may have with respect to the conduct of those nonemployees shall be considered. An entity shall take all reasonable steps to prevent harassment from occurring. Loss of tangible job benefits shall not be necessary in order to establish harassment. (2) The provisions of this subdivision are declaratory of existing law, except for the new duties imposed on employers with regard to harassment. (3) An employee of an entity subject to this subdivision is personally liable for any harassment prohibited by this section that is perpetrated by the employee, regardless of whether the employer or covered entity knows or should have known of the conduct and fails to take immediate and appropriate corrective action. (4)(A) For purposes of this subdivision only, “employer” means any person regularly employing one or more persons or regularly receiving the services of one or more persons providing services pursuant to a contract, or any person acting as an agent of an employer, directly or indirectly, the state, or any political or civil subdivision of the state, and cities. The definition of “employer” in subdivision (d) of Section 12926 applies to all provisions of this section other than this subdivision. (B) Notwithstanding subparagraph (A), for purposes of this subdivision, “employer” does not include a religious association or corporation not organized for private profit, except as provided in Section 12926.2. (C) For purposes of this subdivision, “harassment” because of sex includes sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions. Sexually harassing conduct need not be motivated by sexual desire. (5) For purposes of this subdivision, “a person providing services pursuant to a contract” means a person who meets all of the following criteria: (A) The person has the right to control the performance of the contract for services and discretion as to the manner of performance. (B) The person is customarily engaged in an independently established business. (C) The person has control over the time and place the work is performed, supplies the tools and instruments used in the work, and performs work that requires a particular skill not ordinarily used in the course of the employer's work. (k) For an employer, labor organization, employment agency, apprenticeship training program, or any training program leading to employment, to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.”)
- Holmes v. Petrovich Development Co. (2011) 191 Cal.App.4th 1047, 1058-59. (“There are two theories upon which sexual harassment may be alleged: quid pro quo harassment, where a term of employment is conditioned upon submission to unwelcome sexual advances, and hostile work environment, where the harassment is sufficiently pervasive so as to alter the conditions of employment and create an abusive work environment.”)
- See Mogilefsky v. Superior Court (1993) 20 Cal.App.4th 1409, 1414–15.
- California Department of Fair Employment and Housing, 2015 Annual Report, at 6.
- See Mogilefsky v. Superior Court, endnote 3 above.
- Hughes v. Pair (2009) 46 Cal.4th 1035, 1049. (“As noted earlier, both Title VII and the FEHA impose liability for quid pro quo sexual harassment in the workplace. (See 95 Cal.Rptr.3d pp. 643–644, 209 P.3d pp. 970–971, ante.) To establish quid pro quo sexual harassment under these employment laws, a plaintiff must show “that a tangible employment action resulted from a refusal to submit to a supervisor's sexual demands.” (Ellerth, supra, 524 U.S. 742, 753, 118 S.Ct. 2257, 141 L.Ed.2d 633; see also Miller, supra, 36 Cal.4th at p. 461, 30 Cal.Rptr.3d 797, 115 P.3d 77; Kohler v. Inter–Tel Technologies (9th Cir.2001) 244 F.3d 1167, 1179 [a plaintiff seeking to establish quid pro quo harassment based on rejection of a defendant's request for sexual favors must show a causal connection between that rejection and some adverse employment action]; Cram v. Lamson & Sessions Co. (8th Cir.1995) 49 F.3d 466, 473 [same]; Kauffman v. Allied Signal, Inc. (6th Cir.1992) 970 F.2d 178, 186 [same].) But a claim involving “only unfulfilled threats ... should be categorized as a hostile work environment claim which requires a showing of severe or pervasive conduct.” (Ellerth, supra, at p. 754, 118 S.Ct. 2257.)”) See also Karibian v. Columbia Univ., 14 F.3d 773, 777 (2d Cir. 1994). In this case, the employee alleged that she consented to sexual relations with her supervisor, because she feared the consequences to her job for not doing so. The Second Circuit held that she did not have to present evidence of actual damages or economic loss, in order to state a claim for sexual harassment.")
- Mogilefsky v. Superior Court, endnote 3 above, at 1414. (“To state a cause of action on this theory, is it sufficient to allege that a term of employment was expressly or impliedly conditioned upon acceptance of a supervisor's unwelcome sexual advances.”)
- Hughes v. Pair, endnote 6 above.
- Hughes v. Pair, endnote 6 above, at 1042. (“The other [form of sexual harassment] is sexually harassing conduct that, although not resulting in the loss of or denial of any job benefit, is so “severe or pervasive” as to create a hostile work environment. (Id. at p. 752, 118 S.Ct. 2257.) The terms “quid pro quo” and “hostile work environment” are not in Title VII's text; they first turned up in academic literature, found their way into federal appellate decisions, and after their mention ***644 by the high court in Meritor, supra, 477 U.S. 57, 106 S.Ct. 2399, “acquired their own [legal] significance.” (Ellerth, supra, at p. 752, 118 S.Ct. 2257.)678 Under Title VII, sexual harassment is considered “severe or pervasive” only when it “ ‘ “alter[s] the conditions of [the victim's] employment and create[s] an abusive working environment.” ' ” (Clark County School Dist. v. Breeden (2001) 532 U.S. 268, 270, 121 S.Ct. 1508, 149 L.Ed.2d 509.) Taken into account must be the surrounding circumstances, such as the “ ‘ “frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.” ' ” (Id. at pp. 270–271, 121 S.Ct. 1508.) Thus, “ ‘simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes' ” in employment conditions. (Id. at p. 271, 121 S.Ct. 1508; see also Faragher v. Boca Raton (1998) 524 U.S. 775, 787–788, 118 S.Ct. 2275, 141 L.Ed.2d 662.)”)
- Same, at 1043.
- Same, at 1044. (“A single harassing incident involving “physical violence or the threat thereof” may qualify as being severe in the extreme.”)
- Miller v. Dep't of Corrections (2005) 36 Cal.4th 446, 461-62. (“Such a hostile environment [for purposes of California sexual harassment law] may be created even if the plaintiff never is subjected to sexual advances. (Mogilefsky v. Superior Court, supra, 20 Cal.App.4th at pp. 1414–1415, 26 Cal.Rptr.2d 116.) In one case, for example, a cause of action based upon a hostile environment was stated when the plaintiff alleged she had been subjected to long-standing ridicule, insult, threats, and especially exacting work requirements by male coworkers who evidently resented a female employee's entry into a position in law enforcement. (Accardi v. Superior Court, supra, 17 Cal.App.4th at p. 347–348, 21 Cal.Rptr.2d 292.)”)
- Government Code 12940 GC -- Employers, labor organizations, employment agencies and other persons; unlawful employment practice; exceptions [California sexual harassment law], endnote 1 above.
- Miller v. Dep't of Corrections, endnote 13 above, at 466. (“Following the guidance of the EEOC, and also employing standards adopted in our prior cases, we believe that an employee may establish an actionable claim of sexual harassment under the FEHA by demonstrating that widespread sexual favoritism was severe or pervasive enough to alter his or her working conditions and create a hostile work environment.”)
- Based on facts of the same.
- Mogilefsky v. Superior Court, endnote 3 above, at 1418. (“We therefore conclude that a cause of action for sexual harassment in violation of Government Code section 12940, subdivision (h) may be stated by a member of the same sex as the harasser, whether based on the quid pro quo theory or the hostile environment theory or a hybrid of both theories.”)
- See facts of the same.
- See Singleton v. U.S. Gypsum Co. (2006) 140 Cal.App.4th 1547.
- See Government Code 12940 GC -- Employers, labor organizations, employment agencies and other persons; unlawful employment practice; exceptions [California sexual harassment law], endnote 1 above.
- See same. See also Department of Health Services v. Superior Court (2001). 94 Cal. App. 4th 14.
- Government Code 12940 GC -- Employers, labor organizations, employment agencies and other persons; unlawful employment practice; exceptions [California sexual harassment law], endnote 1 above.
- Civil Code 51.9 CC - Sexual harassment; business, service and professional relationships.