Sexual Harassment in the Workplace
With the recent #metoo and #timesup movements following sexual assault scandals in Hollywood, many industries are having the necessary discussions on sexual harassment in the workplace. California deals with sexual harassment with its own state-level laws, as well as federal legislation and constitutional clauses. The state legislation that concerns sexual harassment is the California Fair Employment and Housing Act (FEHA), which seeks to protect employees from all forms of sexual harassment.
Sexual harassment can be legally defined under two categories: quid pro quo and hostile work environment. While it is difficult to create a concrete legal definition of sexual harassment, these two categories do provide some markers to the courts. First, quid pro quo sexual harassment is based on the Latin “this for that,” which means an employment opportunity is contingent on putting up with some unwanted sexual conduct. This form of harassment can come directly in an offer, or be put forth using a threat. For example, a boss may require an intern to give a sexual favour in order for the intern to be hired full-time.
Another form of sexual harassment in the workplace is a hostile work environment. Such an environment is hostile, offensive, oppressive, intimidating, or abusive due to pervasive sexual harassment (Accardi v. Superior Court). There are a few tests that must be met in order for this case to stand. First, the nature of the conduct requires a more offensive act to happen less frequently in order to be pervasive, than less offensive forms of harassment. The harassment must be objectively hostile, but also subjectively offend the victim. Second, there is an inquiry into the frequency of the behaviour and the number of days such harassment occurred. Finally, given that harassment also depends on the context of the situation, consideration to pervasiveness will also be given by examining the context of the conduct.
In California, all genders and identities are protected from sexual harassment. If sexual harassment does take place and a case is proven in court, both employers and employees can be held liable. The victim can receive punitive damages (to punish the perpetrator), compensatory damages (for actual losses suffered), emotional damages, and receive awards to pay off attorney fees. If sexual harassment takes place, document and report it, and if a victim wants to move forward with a lawsuit, they should consult an experienced attorney.
