Sexual harassment in the workplace can take many forms. It extends far beyond the traditional “quid pro quo” scenario of a male supervisor pressuring a female subordinate for sexual favors. In today’s diverse workforce, sexual harassment often involves more subtle behaviors. It can be directed toward either gender and on the basis of sexual orientation or gender identity.

What’s the difference between discrimination and harassment?

While there is a lot of overlap between the effects of discrimination and harassment, the two concepts are legally distinguishable.

Discrimination in the workplace involves treating people differently for unacceptable reasons such as of race or color; religion; national origin or ancestry, physical disability; mental disability or medical condition; marital status; sex or sexual orientation; gender identity; age, with respect to persons over the age of 40; pregnancy, childbirth, or related medical conditions; and military or veteran status.

Discrimination and harassment can often go hand in hand but are not always present simultaneously. For example, using racial slurs is an act of harassment but discrimination may occur when a supervisor routinely only gives raises or promotions to people based on their race. If you are not given a fair opportunity because you are in the protected class, you may be actively discriminated against. Harassment, particularly hostile work environment harassment, on the other hand, may take the form of inappropriate comments, pressuring, and bullying, but no tangible action.

Experiencing A Pattern Of Uncomfortable Conduct?

No employee should have to endure a workplace where offensive remarks, inappropriate touching, derogatory comments or other uncomfortable behaviors are allowed to persist. If you experience a pattern of sexual harassment at your workplace, and your supervisors are either involved in the harassment or fail to do anything about it, you should consider enforcing your rights through a hostile work environment claim.

This type of employment law claim can help expose the harassment, prevent it from recurring, and shield you from retaliation. You might also be entitled to compensation for the indignity you have suffered and, in some cases, punitive damages (a monetary award intended to deter other employers from allowing such harassment to flourish).

As an employee in the State of California, you have certain rights that protect you against this type of treatment in the workplace under both state and federal law.

California Fair Employment and Housing Act (FEHA)

California has enacted laws to protect people in the workforce. This is known as California’s Fair Employment and Housing Act (FEHA). California law requires that the workforce be free from sexual harassment, a hostile environment, and discrimination. You may have a claim if you have been subjected to a violation of the law.

There are two different types of harassment claims under FEHA: quid pro quo and hostile work environment. To fully understand and recognize a hostile work environment, let’s first examine what quid pro quo harassment looks like.

Quid Pro Quo Sexual Harassment

A harassment in the workplace can consist of “quid pro quo” harassment such as gaining a job-related benefit in exchange for sexual conduct. This is what we often envision when we think about workplace harassment. Quid pro quo harassment occurs when someone in a supervisory role says or suggests that an employee perform a sexual act in order to gain a work-related advantage or benefit. Conduct that often occurs in these types of claims include unwelcomed sexual advances, demands, comments, and retaliation when the employee spurns the advances of the supervisor.

Some benefits that a supervisor may offer for a sexual act include an increase in pay, time off, a better shift, job promotion, or beneficial transfer etc. Often, a person may be retaliated against for not accepting the sexual advances. The retaliation takes the form of a decrease in pay, unwanted transfer, demotion, or even firing.

However, a claim for quid pro quo sexual harassment can usually only be made if there is a tangible employment action like the benefits or retaliatory actions listed above. If there is no tangible employment action, but there is still harassment, a claim could fall under a hostile work environment claim, if it meets certain criteria.

What should you do if you experience quid pro quo harassment in the workplace?

There are a few things that you must do if you experience quid pro quo sexual harassment in the workplace. First, give notice to your employer that the harassing conduct is occurring. If your employer has a reporting policy in place, contact the designated party to report the harassment. If your employer does not have a harassment reporting policy, speak with Human Resources or a supervisor and tell them about the conduct. If your supervisor is the person harassing you, report the conduct to HR or your supervisor’s supervisor.

You must put your employer on notice of the harassing conduct, so that they are aware of the situation and can take corrective action. Reporting this conduct is essential to the success of your claim against your employer for vicarious liability.

Another thing you should do is to file a claim with the Department of Fair Employment and Housing (DFEH). The complaint must be filed within one year of the alleged act(s). After a complaint is filed with the DFEH, you can send a right-to-sue notice, which allows you to sue your employer within one year of receiving the notice.

While being the victim of workplace harassment can be extremely stressful and possibly spark fears of losing your job, you should not simply ignore the harassment. You may wish to consult an attorney to give you advice on what to do or for support in taking action.

It is important to note that in a quid pro quo sexual harassment claim, the supervisor must be the person harassing an employee and there must be a tangible employment action. If either of these elements are not present, the harassment may fall under a hostile work environment claim (HWE).

Hostile Work Environment (HWE)

Under California law, hostile work environment harassment is distinct from quid pro quo harassment. Hostile work environment harassment is often explained in terms of persistent pressuring or bullying. If your employer knows of the harassment or should have known and did not take proper measures to prevent or correct the conduct, your employer may be vicariously liable. This form of harassment may be based on one of several protected classes.

Protected Classes

Under the FEHA, you may not be harassed or discriminated against because of race or color; religion; national origin or ancestry, physical disability; mental disability or medical condition; marital status; sex or sexual orientation; gender identity; age, with respect to persons over the age of 40; pregnancy, childbirth, or related medical conditions; and military or veteran status. In order to be eligible to file a claim under FEHA, you must be one of these protected classes.

What is HWE?

Aside from being a protected class, you must be subjected to harassment repeatedly or pervasively in the workplace. If a co-worker says something to you once that bothers you, that alone will not likely constitute a hostile work environment. If the behavior complained of is minor or inconsequential/trivial or happens occasionally, it is also unlikely to rise to the level of a hostile work environment. Using this as a guideline, to have a claim, the behavior must occur repeatedly and threaten your well-being.

Who is responsible for acts contributing to an HWE claim?

The harassment can be committed by a co-worker, contractor, customer, client, or anyone that continues to harass based on race, religion, disability, medical condition, sexual orientation etc. The conduct does not have to be committed by a supervisor to be actionable. However, these claims are harder to prove and require a showing that the supervisor was negligent. When considering whether an employer was negligent in allowing harassment to persist, the court will look to how an employer responded to the complained of harassment.

If you are harassed by a supervisor and a tangible harassment action is taken, the company will be held strictly liable. The company may have an affirmative defense available if they can prove that no tangible employment action was taken, they took reasonable measures to prevent such conduct and promptly corrected the behavior after learning about it, and the harassed employee failed to report the conduct or take advantage of preventative or corrective measures provided by the employer.

To establish vicarious liability of a company in a hostile work environment claim, the harassed employee must prove that the employer was negligent in allowing the hostile work environment to exist.

You Have Rights. We Can Help You Enforce Them.

Deciding whether to bring a harassment claim involves complex considerations. You should first speak with a California employment law attorney to discuss your options.

In the Sacramento area, turn to the law firm of Perkins Asbill for an evaluation of your claim. We are passionate about standing up for the rights of employees in the workplace. Backed by more than three decades of experience, our legal team has fought — and won — claims against large, powerful employers.

You can rest assured that we are personally invested in your success.

With more than 30 years of employment law experience, our lawyers know how to work through the intricacies of the California Labor Code, the federal Fair Labor Standards Act and other applicable law. To get started, arrange a confidential consultation by calling (916) 446-2000.