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What is the Legal Definition of Sexual Harassment?

Are you being harassed or discriminated against? Would you even know if it were happening today, on the job? Overt sexual harassment is what we see in movies, our media, and on TV, but it isn’t always that obvious.

But what exactly is sexual harassment? It’s important for both men and women to understand their rights, so let’s look at the specifics.

What Qualifies as Sexual Harassment?

According to the Department of Fair Employment and Housing, sexual harassment is a form of discrimination based on sex/gender (including pregnancy, childbirth, or related medical conditions) gender identity, gender expression, or sexual orientation. Individuals of any gender can be the target of sexual harassment.

What constitutes sexual harassment may vary depending on the circumstances, but there are certain actions and behaviors that are almost always unacceptable and rise to the level of sexual harassment.

The legal definition of sexual harassment in California includes many different forms of offensive behavior. It also includes instances of gender-based harassment of someone who is the same sex as the harasser. Unlawful harassment DOES NOT have to be motivated by sexual desire.

Behaviors that are generally considered sexual harassment include:

  1. Inappropriate physical conduct, such as touching, blocking or impeding movements, and sexual assault;
  2. Verbal conduct, such as making sexually derogatory comments, inappropriate sexual or sexist jokes, comments. epithets, and slurs. This category also includes instances of verbal abuse of a sexual nature, such as sexually degrading words or phrases to describe someone. It may also include situations where someone engages in graphic verbal commentaries about someone else’s body
  3. Offensive visual images, such as making sexual gestures, leering, or even displaying sexually suggestive pictures, posters, or other objects;
  4. Threatening or initiating retaliatory action after getting a negative response to a sexual advance;
  5. Offering benefits in exchange for receiving sexual favors.
  6. Discriminatory conduct such as unfair discipline or performance criticism, when directed at women because they are women, may also constitute gender-based harassment as well as discrimination.

The harassment must be severe OR pervasive to be unlawful.  That means that it alters the conditions of your employment and creates an abusive work environment.  A single act of harassment may be sufficiently severe to be unlawful.

It is important to take note, however, that not every instance of showing interest in someone in the workplace is automatically considered sexual harassment. For example, generally, it is not sexual harassment for one employee to ask another co-worker out on a date. If they respect the answer if it is no and move on and continue a professional relationship with that co-worker, this would not be considered sexual harassment.

Understanding the Different Types of Sexual Harassment

In California, what exactly is considered sexual harassment depends on the facts and circumstances of the alleged conduct; however, there are many different types of sexual harassment. Title VII of the Civil Rights Act of 1964 defines sexual harassment in two ways – either hostile work environment or “quid-pro-quo.”

What is Quid Pro Quo Sexual Harassment?

The term “quid pro quo” is a Latin term that translates to “something for something.” In the context of sexual harassment, this typically occurs when a supervisor or other authority figure hints or directly offers that he or she will give the employee something positive (like a promotion or a raise) in return for the employee’s satisfaction of the authority figure’s sexual demand.

Quid pro quo sexual harassment also may occur when a supervisor or authority figure agrees not to reprimand or fire an employee if they perform some sort of sexual request or favor.

Quid pro quo sexual harassment may also happen on job applications. A job applicant to the company may be a subject of this type of harassment if the decision to hire them or not was based on their acceptance or rejection of any sexual advances.

What is Hostile Work Environment Sexual Harassment?

A hostile work environment occurs when unwelcome conduct is severe enough to create an offensive, uncomfortable or abusive workplace. Courts will look at several elements to determine if a workplace is hostile, including:

  • How often the conduct occurs
  • If the conduct is physical, verbal, or both
  • The relationship between the alleged harasser and the claimant
  • Whether one person was victimized or a group of individuals
  • Whether one person was a harasser or a group was allegedly at fault
  • Whether a reasonable person would consider the conduct hostile, offensive or abusive 

California's Laws Regarding Sexual Harassment

To reduce instances of sexual harassment, the state of California set forth certain requirements that are set to go into effect on January 1, 2020. California also passed legislation effective on January 1, 2019, making it easier for sexual harassment victims to get their cases to a jury rather than having a judge throw them out for “insufficient evidence” before trial. The Legislature amended the Fair Employment and Housing Act to state that ordinarily harassment cases are inappropriate for summary adjudication by a judge and should typically be heard by a jury.

Importantly, the 2019 laws also prohibit companies from entering into secret settlements of sexual harassment claims which require the facts of those claims be kept confidential. This will make it much easier for victims of sexual harassment to find other victims harassed by the same perpetrator to testify as witnesses in your case.

How to File a Sexual Harassment Lawsuit

If you think you have a sexual harassment lawsuit, you generally first bring your complaint to the EEOC. The EEOC is the United States Equal Employment Opportunity Commission. Its role is to enforce the federal laws that make it illegal to discriminate against employees or job applicants for many reasons, including individuals who have initiated complaints regarding sexual harassment in the workplace.

The EEOC will investigate and attempt to resolve your issue. At the end of their investigation, they will issue you a Right to Sue letter. If you are not satisfied with the EEOC's response, you can use this letter to file a lawsuit.

A variety of remedies may be available to you if it is determined you’ve been the victim of sexual harassment, including:

  • Reinstatement or hiring
  • Back pay
  • A deserved promotion
  • Punitive damages (designed to punish the employer)
  • Compensatory damages (emotional pain and suffering)
  • Front pay (payment for potential future losses)
  • Recuperation of attorney’s fees, court costs, and expert witness fees

For help with filing a civil lawsuit for sexual harassment, it's important to hire a sexual harassment attorney right away. They will assist by walking you through the process of filing the complaint and supporting you throughout the process.

Reach out to Feldman Browne, APC Today!

Unfortunately, sexual harassment still exists. It hasn’t been eradicated and it isn’t slowing down; it is simply taking on new forms. If you feel your rights have been violated, don’t stand in the shadows any longer – take control of the situation, partner with a proven California employment law firm, and stand up for your rights.

Feldman Browne, APC has been at the forefront of the #MeToo movement, recovering tens of millions of dollars on behalf of the victims of sexual assault, gender bias and sexual harassment, including more than $70,000,000 since the Harvey Weinstein scandal broke two years ago. If you would like to speak to a leading, Los Angeles based employment attorney, contact Feldman Browne, APC now for a free consultation.