Workplace Harassment
Are you being Harrassed in the Workplace?
What is harassing conduct?
Harassing conduct may include, but is not limited to: verbal harassment, such as obscene language, demeaning comments and facial expressions, shunning or belittling comments during meetings, slurs, or threats; physical harassment, such as unwanted touching, assault, or physical interference with or blocking normal work or movement; visual harassment, such as offensive posters, objects, cartoons, photographs, or drawings; and unwanted sexual advances.
Conduct Directed at Employee
California Government Code §§ 12923 and 12940(j) prohibits workplace harassment that creates a work environment that is hostile, intimidating, offensive, oppressive, or abusive. The harassment must be severe or pervasive. An objective reasonable person must consider the work environment to be hostile, intimidating, offensive, oppressive, or abusive. The harassing conduct must have either been by a supervisor or the supervisor (or an agent of a supervisor) must have known or should have known of the conduct and failed to take immediate and appropriate corrective action.
Conduct Directed at Others
A claim for workplace harassment may also arise under California Government Code §§ 12923 and 12940(j) where an employee was not the target of the harassing conduct, but personally witnesses harassing conduct in their immediate work environment. The harassing conduct must be severe or pervasive. An objective reasonable person must consider the work environment to be hostile, intimidating, offensive, oppressive, or abusive. The harassing conduct must have either been by a supervisor or the supervisor (or an agent of a supervisor) must have known or should have known of the conduct and failed to take immediate and appropriate corrective action.
Sexual Harassment
California Courts recognize two types of sexual harassment: (1) quid pro quo sexual harassment and (2) hostile work environment sexual harassment, which may include sexual favoritism.
Quid Pro Quo Sexual Harassment
Quid pro quo sexual harassment occurs when submission to sexual conduct is made a condition of employment, job benefits, or favorable working conditions. That sexual conduct may include sexual propositions, unwarranted graphic discussion of sexual acts, and comments about the employee’s body and the sexual uses to which it would be put.
Hostile Work Environment Sexual Harassment or Sexual Favoritism
California Government Code §§ 12923 and 12940(j) prohibits sexual harassment that creates a work environment that is hostile, intimidating, offensive, oppressive, or abusive. The harassment must be severe or pervasive. An objective reasonable person must consider the work environment to be hostile, intimidating, offensive, oppressive, or abusive. The harassing conduct must have either been by a supervisor or the supervisor (or an agent of a supervisor) must have known or should have known of the conduct and failed to take immediate and appropriate corrective action.
Sexual favoritism may give rise to a claim under California Government Code §§ 12923 and 12940(j) where an employee is subjected to sexual favoritism that is severe or pervasive. “‘Sexual favoritism’ means that another employee has received preferential treatment with regard to promotion, work hours, assignment, or other significant employment benefits or opportunities because of a sexual relationship with an individual representative of the employer who was in a position to grant those preferences.” (Judicial Council of Cal. Civ. Jury Instrs. § 2521C (2022 ed.).) An objective reasonable person must consider the work environment to be hostile, intimidating, offensive, oppressive, or abusive. A supervisor must have either engaged in or created the sexual favoritism, or the supervisor (or an agent of a supervisor) must have known or should have known of the conduct and failed to take immediate and appropriate corrective action.
