What Is Sexual Harassment?

Sexual harassment is unsolicited and unwanted behavior that is hurtful and upsetting because of your sex, sexual orientation, or gender identity. Sexual harassment typically takes one of two forms. The more widespread form is where the harasser’s behavior creates a work environment that is hostile, intimidating, offensive, oppressive, or abusive. The second type is quid pro quo harassment where benefits of employment are conditioned on sexual favors. Both forms of sexual harassment violate the law.

The law hasn’t always protected workers based on their sexual orientation or gender identity, but the Supreme Court of the United States recently held that employers cannot discriminate on the basis of sexual orientation or gender identity.

Work Environment Harassment

Sexual harassment based on the work environment requires a showing of harassing conduct that is (1) hostile, intimidating, offensive, oppressive, or abusive (2) because of your sex, sexual orientation, or gender identity; and that is (3) severe or pervasive.

Sexual Harassment Includes a Wide Range of Conduct. Harassing conduct can be verbal, physical, or visual is nature. The conduct does not need to be sexual to be harassing. What makes conduct “harassing” is that it is unwanted and communicates a hostile, intimidating, offensive, oppressive, or abusive message to the harassed employee because of their membership in a protected class (e.g. sex, sexual orientation, or gender identity).

A supervisor’s or coworker’s rude behavior does not automatically create an unlawful harassing work environment. But if the conduct is directed at you or is upsetting to you because of your membership in a protected class, then it may support a harassing work environment claim. In either case, you should report the conduct to your employer and consider seeking legal advice.

Sexual Harassment Need Not Be “Sexual” to Be Illegal. It is not necessary that the harassing conduct be sexual in nature to constitute sexual harassment. Sexual harassment can include intimidation or hostility directed at an employee because of the employee’s sex, sexual orientation, or gender identify. For example, a supervisor who calls his female employees derogatory names may be engaging in sexual harassment even though he has not made any sexual overtures towards his female subordinates. Additionally, the same conduct can be harassing for men, women, and people who identify as non-binary. For instance, a coworker who watches pornography at work may create a harassing work environment for men, women, and non-binary people alike.

Hostile, Intimidating, Offensive, Oppressive, and Abusive Conduct Is Prohibited. Conduct is “harassing” because of its effect on the harassed individual. The key inquiry is whether the conduct communicates a hostile, intimidating, offensive, oppressive, or abusive message. In the example above, the supervisor’s use of derogatory names toward female employees might be perceived as hostile or oppressive. The supervisor’s conduct may be actionable harassment so long as it occurs frequently enough to pervade the work environment.

The Conduct Must Be Either Severe or Pervasive to Be Actionable. Severe conduct is extreme, like a sexual battery. Depending on the severity, a single incident may be enough to establish a work environment harassment claim. Particularly so if the harasser is a supervisor or manager. Less severe conduct is only unlawful if it occurs with enough frequency to alter the work environment. In other words, it must be pervasive. The law doesn’t prohibit teasing or offhand comments that are trivial or petty.

Sexual Harassment Includes Same-Sex Harassment. Sexual harassment can occur between members of the same sex. Harassing conduct directed at an employee because of the employee’s actual or perceived sexual orientation or gender identity is likewise prohibited.

Quid Pro Quo Harassment

Quid pro quo sexual harassment requires that the terms of employment, job benefits, or favorable working conditions were made contingent on the acceptance of sexual advances or conduct. The sexual advances or conduct must be unwanted. The harassment may be unwanted even if an applicant or employee ultimately submits to the harasser’s sexual advance or conduct. The quid pro quo theory of harassment only applies if the harasser is a manager, supervisor, or otherwise has authority over the harassed employee.

Employers Must Stop Harassment at Work

Employers have an obligation to maintain a workplace that is free from harassment. Affirmative steps, like implementing anti-harassment policies and providing sexual harassment training, should be taken (and in some instances are required) to discourage harassment at work.

Employers are legally responsible for the harassing conduct of its managers and supervisors. If a manager or supervisors harasses an applicant or employee, the employer is liable for their actions. But an employer is only liable for a coworker’s or consumer’s harassing conduct if it knew or should have known of the harassment and did not stop it.

Once an employer becomes aware of sexual harassment, it must promptly take steps to remedy it. Employers are also required to take corrective action to prevent future harassment. Prompt employer intervention not only minimizes injury to the victim, it can send a clear message that harassment is not tolerated. Knowingly permitting sexual harassment makes an employer more culpable and may expose the employer to punitive damage liability.

You Should Report Sexual Harassment to Your Employer

Reporting sexual harassment to your employer is an important first step. When you put your employer on notice of the sexual harassment, they are obligated to remedy the situation.

If you choose to report sexual harassment, determine whether your employer has any established procedures for making a complaint. Additionally, your employer may have a hotline available to you to lodge complaints anonymously. However you choose to complain, be clear. Tell your employer that you are being harassed because of your sex, sexual orientation, or gender identity. Provide your employer with all of the information, including witnesses and other evidence. It is best if your complaint is in writing. If you do not complain in writing, your employer may claim that you never filed a complaint and attempt to undermine your credibility.

There are other steps you can take to protect yourself:

  • Document in detail all of the harassing conduct.
  • Do not destroy any evidence of harassment, like emails or text messages.
  • Tell the harasser, using clear language, that the conduct is unwelcome, if you feel comfortable doing so.
  • Document your complaints of harassment and your employer’s response.
  • Report any retaliation for having made a complaint of harassment.
  • If you experience physical or emotional distress as a result of the harassment, seek medical or mental health treatment from a professional. It’s common for victims of sexual harassment to suffer from depression, anxiety, or other physical or mental distress. If you’re suffering, you are not alone.
  • Contact us. We can help guide you through the process, fight against harassment, and hold your employer accountable.

Many people are understandably hesitant about reporting sexual harassment because they fear they might be retaliated against. However, it is illegal for employers to retaliate against employees for having made a good-faith complaint of harassment.

Importantly, when you report sexual harassment you may be seeking relief for others too. Often, harassers target more than one person so there is a good chance you are helping others by reporting the harassment. Furthermore, unreported and unaddressed harassment may escalate.

Sexual harassment hurts us all. A harassment-free work environment is undoubtedly a safer and more productive place for all. If you observe harassment in your workplace, speak up. You can be an ally for others by offering support or by reporting sexual harassment to your employer.

Our Sexual Harassment Law Firm Can Help

The sexual harassment lawyers at the California Civil Rights Law Group have a proven track record. Three of the largest sexual harassment jury verdicts in California history have been won by lead trial lawyer, Larry Organ. If you’re looking for experienced sexual harassment attorneys in the San Francisco Bay Area, contact us.

Sample Sexual Harassment Verdicts

  • Gober v. Ralphs Grocery Co. (2002) at $30,550,000
  • Weeks v. Baker McKenzie (1998) at $7,100,000
  • Marsicz v. UltraStar Cinemas (2005) at $6,850,000

Sample Sexual Harassment Settlements

  • 3 Plaintiffs v. Major Hotel Chain (2003) at $3,300,000
  • 2 Plaintiffs v. Drug Company (2002) at $2,300,000
  • 1 Plaintiff v. University (2020) at $2,800,000
  • 2 Plaintiffs v. Major High Tech Company (2005) at $2,100,000
  • 2 Plaintiffs v. Grocery Store (2018) at $975,000
  • 1 Plaintiff v. Retail Store (2016) at $650,000

From offices in San Francisco, Oakland, and Marin County, our attorneys protect the civil rights of workers in the San Francisco Bay Area and throughout California.

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