| KEY PRACTICE AREAS 
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SEXUAL HARASSMENT
| WHAT IS SEXUAL
HARASSMENT? The Equal Employment Opportunity Commission ("EEOC") regulations, the Federal Employment and Housing Act ("FEHA"), and court decisions generally define sexual harassment as "unwelcome sexual conduct" in the workplace. It may include unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature. TYPES OF SEXUAL HARASSMENT Sexual harassment is typically divided in two distinct types: "Quid Pro Quo" and "Hostile Work Environment" Harassment. 1. Quid Pro Quo: Harassment by supervisors - Quid pro quo ("something for something") harassment occurs when submission to unwelcome sexual conduct is made a term or condition of employment, or when submission to or rejection of unwelcome sexual conduct is used as the basis for employment decisions affecting the individual. For example, quid pro quo harassment occurs when a supervisor pressures an employee for sex in exchange for a promotion, raise, favorable performance appraisal, or other condition of employment. 2. Hostile Work Environment - Hostile work environment sexual harassment encompasses sexual conduct that does not necessarily cause a tangible job detriment, but that "has the purpose or effect of unreasonably interfering with an employee's work performance or creating an intimidating, hostile or offensive work environment." Repeated and offensive sexual teasing or jokes, pressure for dates or sex, sexual touching, cornering, or pinching, and sexually demeaning comments may constitute offensive environment harassment. PROVING HOSTILE ENVIRONMENT HARASSMENT To establish a claim for hostile environment sexual harassment, a claimant must prove that (1) the claimant is a member of a protected class, (2) the claimant has been subjected to unwelcome harassment, (3) the harassment was "because of" a claimant's sex, (4) the harassment was severe or pervasive enough to affect a term, condition, or privilege of employment; and, (5) the employer knew or should have known of the harassment, but failed to take prompt remedial action. UNLAWFUL SEXUAL CONDUCT 1. Harassment of a Sexual Nature This type of harassment includes unwelcome requests for sexual favors, sexual advances, physical sexual touching, discussions about sexual activities or sexual fantasies, telling jokes about sex, displaying sexually explicit photographs, referring to sexual parts of the body, and any other statements or conduct relating to sex. 2. Gender-Based Hostility or Animosity Federal and State laws prohibit harassment based on gender, even if the harassment is not of a sexual nature. This type of sexual harassment--commonly known as gender-based animosity or hostility--is very similar to other types of employment discrimination because it is usually grounded in hostility and bias of one sex toward another. For example, a statement to a female employee such as "females should not be managers," or use of gender-based profanity, can form the basis of a claim of sexual harassment based on gender. |
