What conduct constitutes sexual harassment?

“What do you think of when someone refers to sexual harassment? In California, and under federal law, sexual harassment covers a wide variety of behavior–from unwanted sexual attention, to offering favorable treatment in exchange for sex, to sex-related teasing that fundamentally changes the workplace environment, to general hostility directed towards someone because of that person’s sex—even if the hostility itself is not of sex-based origin or [sex-]based terms.” Nicole Legrottaglie explained in a recent CER webinar.

Overall, there are two main types of sexual harassment under the law. However, there are many examples of behaviors that would qualify under one or both of those types.

Two types of sexual harassment

There are two primary types of sexual harassment: quid pro quo and hostile environment.

“Quid pro quo is essentially ‘this for that.’ It’s some term or condition of employment tied to a sexual favor, where an employee must choose between giving in to sexual demands or forfeiting a job benefit, such as a raise, continued employment, or a promotion.” Legrottaglie explained.

“The typical case involves some form of sexual advancement or a proposition by a supervisor with an expressed or implied threat: that if an employee refuses, he or she will be terminated or demoted or lose some other job-related benefit. Alternatively, the employee may be promised better treatment, such as a promotion, a transfer, a raise, or a favorable recommendation if the employee submits to the sexual advances.” Legrottaglie told us.

Hostile environment harassment, on the other hand, does not require a direct threat or expectation of a trade of sexual favors for some other benefit. A hostile environment occurs when there is unwelcome behavior, based on someone’s sex, and that behavior is either severe or pervasive. Here’s a breakdown:

• Unwelcome. This is the critical element. That said, the alleged victim is not required to state out loud that the conduct is unwelcome, and participation in such conduct does not mean it wasn’t unwelcome. “There are several reasons that an employee may not object to conduct that she or he feels is unwelcome or offensive. For instance, the employee may want to fit in. The employee may need to keep the job. Or the employee fears retaliation.” Legrottaglie explained.
• Based on Sex. The conduct could be sexual comments that make the employee uncomfortable. It could also be non-sexual hostility aimed at someone because of his or her sex. Sexual harassment isn’t necessarily confined to behavior directed to members of the opposite sex—if it is based on sex, that’s what matters.
• Severe or Pervasive. “In a hostile environment claim, the harassment must be so severe or pervasive as to alter the conditions of the victim’s employment and create an abusive working environment. It’s important to note that this is sort of a sliding scale. The more severe the incidents of misconduct are, the less the employee needs to show that the harassment is pervasive.” Legrottaglie told us.

What conduct constitutes sexual harassment?

Here are some examples of conduct – verbal, physical, or visual conduct – that may constitute sexual harassment.

Verbal conduct examples:

• Sexual epithets, jokes, derogatory comments or slurs.
• Using terms of endearment, such as “honey,” “sweetie,” or “baby.”
• Comments about the employee’s appearance or body parts.
• Comments and/or questions about your or the employee’s sex life.
• Repeated, unwelcome requests for dates.
• Sexually-charged language.

Physical conduct examples:

• Pinching, patting, hand on shoulder, back rubs, touching.
• Cornering or impeding movement (i.e., blocking the door or any physical interference with normal work or movement).

Visual conduct examples:

• Sexual cartoons, drawings, photographs or derogatory posters.
• Offensive screen savers.
• Leering or looking someone up and down.
• Articles of clothing. Some articles of clothing may contain slogans, cartoons, images, puns, or other items that could be offensive, derogatory, or sexual in nature.
• Emails and social media. Don’t send inappropriate messages—even to a private email address or on a private social media account.

The above information is excerpted from the webinar “AB 1825 Harassment Training:
Learn the Compliance Obligations Your Organization Must Meet.” To register for a future webinar, visit CER webinars.

Nicole A. Legrottaglie is an attorney in the Sacramento office of Carothers DiSante & Freudenberger LLP. She defends her clients in a broad range of employment claims, including claims of discrimination, retaliation, harassment, wrongful termination, ADA/FMLA compliance, wage and hour, contract disputes, and unfair business practices.