It is illegal to discriminate or harass a person in the workplace on the basis of gender or sex. California and federal laws prohibit this behavior in private businesses, government agencies, and labor organizations. Each incident of sexual harassment is different, however, there are two main categories into which most cases fall — “quid pro quo” cases and “hostile work environment” cases.
If a supervisor acts in a way that exposes a worker to unwanted sexual behavior, they may have committed “hostile work environment” sexual harassment. Although similar to “quid pro quo” sexual harassment, where a direct supervisor seeks sexual favors in return for something within the supervisor’s powers, hostile work environment sexual harassment is slightly distinct.
Hostile work environment sexual harassment consists of actions that must sufficiently offend, humiliate or distress the worker in the workplace. Under these circumstances, the offending supervisor has probably engaged in sexual harassment. Common examples of a hostile work environment behavior include:
• Making offensive remarks about looks, clothing, or body parts
• Using sexual innuendos or comments
• Asking intrusive sexual questions
• Making sexually suggestive gestures or sounds
• Telling sexual or lewd jokes, hanging sexual posters, or making sexual gestures
• Sending, forwarding or soliciting sexually suggestive letters, notes, emails, or images
• Displaying pornography or other sexually explicit content
• Deliberately exposing private parts
Hostile work environment harassment also occurs when unwelcome comments or conduct based on sex, race or other legally protected characteristics unreasonably interferes with an employee’s work performance or creates an intimidating, hostile or offensive work environment. Anyone in the workplace might commit this type of harassment – a manager, co-worker, or non-employee, such as a contractor, vendor or guest. The victim can be anyone affected by the conduct, not just the individual at whom the offensive conduct is directed.
Actions which may result in hostile environment harassment, but are non-sexual in nature, include:
• Expressing negative stereotypes regarding an employee’s birthplace or ancestry
• Using racially derogatory words, phrases, epithets
• Comments about an individual’s skin color or other racial/ethnic characteristics
• Using gestures, pictures or drawings which would offend a particular racial or ethnic group
• Making disparaging remarks about an individual’s gender that are not sexual in nature
• Making negative comments about an employee’s religious beliefs (or lack of religious beliefs)
There is no universal standard as to what constitutes a hostile environment, and cases with very similar situations have been decided differently. Furthermore, the standard of finding the employer liable is very high. The plaintiff must show that the employer was actually aware of the behavior, or should have been aware of it under reasonable circumstances. It is not enough to show that sexually suggestive behavior occurred as the plaintiff must show that the employer could have taken reasonable steps to stop the behavior.
For example, the employer may not be held liable for such behavior if it occurred outside the workplace. However, if the comments are made by a supervisor to a subordinate outside the workplace and they carry negative impact over into the workplace, the subordinate may make a claim for harassment, based on a hostile work environment.
The critical question in hostile work environment cases is the severity and pervasiveness of the unwelcome sexual conduct. To determine whether the behavior is sufficiently severe or pervasive, the court will look at:
• The severity of the actions
• The frequency of the actions
• The timing or context of the conduct to determine whether the behavior is sufficiently severe or pervasive
Moreover, a claim of harassment generally requires several elements, including:
1. The complaining party must be a member of a statutorily protected class;
2. The complaining party must have been subjected to unwelcome verbal or physical conduct related to his or her membership in that protected class;
3. The unwelcome conduct complained of must have been based on his or her membership in that protected class;
4. The unwelcome conduct affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with his or her work performance and/or creating an intimidating, hostile or offensive work environment.
If you feel you are subject to workplace harassment or discrimination due to a hostile work environment, you should first consult your employer’s sexual harassment and racial discrimination policies. This usually means working through your supervisor or human resources department to take the appropriate actions. And most importantly, speak with an experienced California employment lawyer who can review your case and evaluate your options free-of-charge.
Proving sexual harassment can be challenging, but with the right legal team, it can be done. Take the first step to protecting yourself and stopping this hurtful and illegal behavior. Take advantage of a free initial consultation to discuss your specific case by calling the toll free number (888) 500-8469 or clicking here to contact us regarding your case.
We are here to answer your questions, discuss your circumstances, and help you.
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