What is Sexual Harassment? The California Supreme Court has cited with approval the federal EEOC's definition of sexual harassment as "unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that has the 'purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment." (Lyle v. Warner Bros. Television Productions (2006) 38 Cal.4th 264, 278.) What is "quid pro quo" harassment? "Quid pro quo" sexual harassment is when a supervisor makes sexual conduct of an employee a condition for employment benefits or advancement or a condition for avoiding adverse employment action. Adverse employment action may include poor performance reviews and preclusion from advancement or salary increases. What is "hostile work environment" sexual harassment? "Hostile work environment" sexual harassment occurs when an employee is subject to unwelcome advances or the use sexual innuendos or offensive gender-related language that is sufficiently severe or pervasive from the perspective of a reasonable person with the same fundamental characteristics as the offended employee. This type of harassment must be sufficiently severe or pervasive to alter the conditions of the offended employee's employment and create an abusive environment. A single instance of sexual harassment in the "hostile work environment" context may be sufficient, but repeated instances increase the severity of the events, so that a reasonable person would be more likely to find the conduct sexually harassing due to its repetition. It is possible for an employee to make a hostile work environment claim when the harassment is not directly directed to the complaining employee, if the harassment permeated the complaining employee's work environment. Thus, an employee can make a hostile work environment claim if the employee witnessed the harassing conduct and the conduct was severe or pervasive enough to be considered harassment by a reasonable person with the same fundamental characteristics as the complaining employee. In regard to unwanted sexual advances, a complaining employee must generally show that he or she gave notice that the advances are unwelcome. Although favoritism by a supervisor towards an employee with whom the supervisor is having a consensual sexual affair does not ordinarily constitute harassment of other employees, a pattern of sexual favoritism may constitute a hostile work environment in the event that the message by management is that sexual affairs are a way to get ahead in the workplace. Does non-sexual harassment, such as being yelled at in the workplace, constitute gender discrimination? Screaming and yelling by male supervisors to female employees at work may constitute gender discrimination that is actionable if the screamer yells more forcefully or more frequently at female employees than at male employees and in a manner that affects women more adversely than it affects men in the workplace. Such non-sexual behaviors can constitute gender discrimination in the nature of a hostile work environment, as confirmed in the case of E.E.O.C. v. National Education Association by the Ninth Circuit of the United States Court of Appeals in September 2005. Who is responsible for sexual harassment in the workplace? An employer generally has to be on notice that a co-worker, or even a vendor, is harassing an employee before the employer is responsible. However, an employer is strictly liable for the sexual harassment of an employee's supervisor. In addition, the Fair Employment and Housing Act (FEHA) requires employers to take reasonable steps to prevent unlawful harassment in the workplace. For companies that have fifty (50) or more employees, FEHA requires at least two hours of classroom or other interactive training regarding sexual harassment for all supervisors. Under California law, the Fair Employment and Housing Act (FEHA) declares the public policy of the state is to protect and safeguard the right and opportunity of all persons to seek, obtain, and hold employment without discrimination or abridgement on account of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, MARITAL STATUS, SEX, or age (California Government Code ?12920, emphasis added). In the absence of a contract or collective bargaining agreement for a union member that precludes an employer from termination or adverse employment action, employees in California are presumed to be employees at-will. An employee at-will can be fired at any time, for any reason or for no reason at all, except an employee cannot be fired for discriminatory reasons, such as those listed in FEHA referred to above, or for a reason against public policy. An example of a public policy reason is a whistle blower who contacts a government agency with complaint that the employer is violating government regulations in the workplace; if the employer retaliates against the employee with adverse employment action, the retaliation would be considered actionable as against public policy. Title IV of the federal law also makes sexual harassment illegal, as interpreted by federal case law. Do you have a sexual harassment case? You probably know if you have been subject to "quid pro quo" sexual harassment, which is where a supervisor has demanded sexual conduct as a condition for benefits or advancement or as a condition for avoiding adverse employment action. The more difficult case to evaluate is a claim of hostile work environment. You should discuss the particular facts and circumstances of a hostile work environment claim with an experienced sexual harassment attorney. Sexual harassment lawyers are available at the Broderick Law Firm to answer your questions and provide information and legal advice. Call us at (650) 857-9000 or email us at brodericklaw@brodericklaw.com. What are your time limits? An employee has one year from the date of the incident to bring an administrative claim before the Department of Fair Employment and Housing (DFEH). Upon a finding of merit, the DFEH will issue a complaint against the employer and give the employee a "right to sue" letter. Most often the case is not resolved by the DFEH, and the employee can use the "right to sue' letter to bring a lawsuit for damages. The federal law under Title VII requires a shorter time for the employee to bring the administrative complaint. An employee has 300 days from the date of the last incident to bring an administrative complaint to the Equal Employment Opportunity Commission (EEOC), where the employee can similarly get a "right to sue" letter for a meritorious claim. What is the applicable law in California for sexual harassment? Under California law, the Fair Employment and Housing Act (FEHA) declares the public policy of the state is to protect and safeguard the right and opportunity of all persons to seek, obtain, and hold employment without discrimination or abridgement on account of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, MARITAL STATUS, SEX, or age. (California Government Code ? 12920, emphasis added) In the absence of a contract or collective bargaining agreement for a union member that precludes an employer from termination or adverse employment action, employees in California are presumed to be employees at-will. An employee at-will can be fired at any time, for any reason or for no reason at all, except an employee cannot be fired for discriminatory reasons, such as those listed in FEHA referred to above, or for a reason against public policy. An example of a public policy reason is a whistle blower who contacts a government agency with complaint that the employer is violating government regulations in the workplace; if the employer retaliates against the employee with adverse employment action, the retaliation would be considered actionable as against public policy. Title IV of the federal law also makes sexual harassment illegal, as interpreted by federal case law