Sexual Harassment – Hostile Work Environment Harassment
The California Supreme Court has defined “harassment” 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.”
To establish a claim for “hostile environment” sexual harassment the following must be shown:
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The employee was subjected to unwelcome sexual advances, conduct or comments;
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The harassment was based on the employee's sex; and,
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The harassment was so severe or pervasive that it altered the conditions of the employee's employment and created an abusive working environment.
The Harassment is Unwelcome Sexual Advances, Conduct, or Comments
Prohibited behavior includes verbal, physical, and visual harassment, as well as unwanted sexual advances.
Verbal harassment includes offensive remarks, comments, innuendos, or slurs about or regarding sex.
Physical harassment includes touching, grabbing, groping, hugging, impeding or blocking one's movement, or any physical interference with normal work or movement.
Visual harassment includes distributing or showing pornography, explicit pictures, posters, cartoons, or drawings.
Sexual advances include being asked to engage in sexual conduct, being asked to go out on dates, being asked to be alone, or being asked to be more than work colleagues.
The Harassment is Based on the Employee's Sex
The unwanted behavior towards an employee must be because of that employee's sex. Thus, a female employee must be subjected to the unwanted harassment because she is female – if she were a male, she would not have been subjected to the same conduct.
It is the disparate treatment that an individual is subjected to because of his or her sex that is at the center of a sexual harassment claim.
The Harassment is Severe or Pervasive Such That it Altered the Conditions of the Employee's Employment and Created an Abusive Work Environment
To be actionable sexual harassment, an employee's work environment must be both objectively and subjectively offensive such that it altered the conditions of the employee's employment and created an abusive work environment. This means that a reasonable person would find the employee's work environment hostile or abusive and also that the employee perceived his or her work environment to be hostile or abusive.
To determine whether harassment has altered the conditions of an employee's employment and has created an abusive work environment the entirety of the harassment, including the frequency of the harassment, the severity of the harassment, whether the harassment is physically threatening or humiliating, and whether the harassment unreasonably interferes with an employee's work performance, is examined.
The more egregious the harassing conduct is, the more likely a court will find the harassment to be severe and pervasive so as to alter the conditions of an employee's employment. Additionally, the more the harassing conduct constitutes a pattern of behavior rather than isolated or sporadic incidents, the more likely a court will find the harassment to be severe and pervasive so as to alter the conditions of the employee's employment.