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Sexual Harassment

Sexual harassment includes any conduct (whether verbal, visual, or physical), which substantially interferes with an individual's work performance or which creates a working environment that is hostile, intimidating, or offensive.

There are two different types of sexual harassment: 1) quid pro quo and 2) hostile work environment. "Quid pro quo" literally means "something for something." This type of harassment occurs when an employer conditions any employment benefit or threatens any negative employment action upon the employee's performance of some type of sexual favor. Quid pro quo harassment always occurs between a supervisory employee and a subordinate.

The far more common type of sexual harassment is hostile work environment harassment. A hostile work environment will be found to exist when harassment is sufficiently severe or pervasive such that it alters the conditions of an individual's employment and creates an abusive working environment. As mentioned above, a "hostile work environment" can be created due to sexual harassment or any other form of prohibited harassment (racial harassment, religious harassment, etc.).

In determining what constitutes a "hostile" or "offensive" working environment, courts generally employ a reasonable person standard. That is, the court will ask whether a reasonable person would have found the behavior offensive. In some sexual harassment cases, however, certain courts have employed a "reasonable woman" standard, under the rationale that, because women are disproportionately the victims of sexual crimes, women are especially sensitive to sexual overtones in the workplace.

The recent onslaught of sexual harassment claims has forced the courts to evaluate various situations for sexual harassment. Although the outcomes vary from court to court, a consistent trend in favor of the complainant is visible. Some of the more recent examples include the following:

• Illegal sex-based harassment and discrimination under Title VII found where a supervisor subjected all subordinates (regardless of gender) to the same amount of gender-neutral hostility. EEOC v. National Education Assn. Alaska (9th Cir. 2005) 422 F.3d 840.
• Pervasive influence on using a nickname can constitute harassment and/or discrimination, even if the nickname does not refer to the person's race, ethnicity, etc. El-Hakem v. BJY, INC. (9th Cir. 2005) 415 F.3d 1068
• A hostile work environment sexual harassment claim may exist for co-workers of employees engaged in a consensual relationship, if the relationship results in favoritism which is sufficiently widespread and pervasive. Miller v. Dept. of Corrections (2005) 36 Cal.4th 446.
• Graphic or frank sexual language alone did not create a hostile work environment where the plaintiff had been warned that she would be exposed to such language prior to taking the job and where the language was part of the creative process among writers for a television show. Lyle v. Warner Bros. Television Prod. (2006) 39 Cal.4th 264.
• Court reaffirms the recognition of same sex harassment and reiterates that sexual harassment does not have to include an element of sexual desire in order to create a hostile work environment. Singleton v. US Gypsum Company (2006) 140 Cal.App. 4th 1547.

How Harassment Occurs

There are three primary modes of harassment: 1) verbal; 2) visual; and 3) physical. Verbal harassment includes such things as derogatory name calling, comments, slurs, jokes, stories, nicknames, whistling, etc. Visual harassment includes derogatory posters, cartoons, drawings, screen-savers, photographs, gestures, magazines, staring, etc. Physical harassment includes such things as touching, impeding or blocking movement, pinching, patting, caressing, hugging, brushing up against, stalking, or any other unwelcome physical contact or interference.

Generally, egregious verbal, or physical harassment is easy to recognize. However, subtle forms of these behaviors are more difficult to spot and can leave even the most well-intentioned employer on the hook. Some examples of less obvious harassment include jokes shared among friendly employees, especially email jokes forwarded from employees; teasing among employees; use of nicknames at work; office hugs; offensive behavior during off-site work events, such as holiday party; fits of rage or anger, etc. Employers must train supervisors to recognize these behaviors which create risk and must cultivate an office culture that encourages employees to report any such behavior. A trained workforce and an office culture which encourages identification of risky behavior are essential in order to address harassment proactively, rather than in the courtroom.

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