Under Gov C § 12940(h), there are two theories upon which sexual harassment in the workplace may be alleged. The first is quid pro quo harassment, where a term of employment is conditioned upon submission to unwelcome sexual advances. The second is hostile work environment, where the harassment is sufficiently pervasive so as to alter the conditions of employment and create an abusive work environment. A cause of action for quid pro quo harassment involves the behavior most commonly regarded as sexual harassment, such as sexual propositions, unwarranted graphic discussion of sexual acts, and commentary on the employee’s body and the sexual uses to which it could be put. To state a cause of action on this theory, it is sufficient to allege that a term of employment was expressly or impliedly conditioned upon acceptance of a supervisor’s unwelcome sexual advances. By contrast, a cause of action for sexual harassment on a hostile environment theory need not allege any sexual advances whatsoever. It is sufficient to allege that an employer created a hostile environment for an employee because of that employee’s sex. Mogilefsky v. Superior Court (1993, Cal App 2d Dist) 20 Cal App 4th 1409, 26 Cal Rptr 2d 116, 1993 Cal App LEXIS 1233.
The Elements of Cause of Action for Quid Pro Quo Harassment:
- expressly or impliedly conditioning employment benefits on submission to, or tolerance of, unwelcome sexual advances
Elements of Cause of Action for Hostile Workplace Claim of Harassment:
- Severe or pervasive
- the following factors can be considered: “(1) the nature of the unwelcome sexual acts or works (generally, physical touching is more offensive than unwelcome verbal abuse); (2) the frequency of the offensive encounters; (3) the total number of days over which all of the offensive conduct occurs; and (4) the context in which the sexually harassing conduct occurred.
- discriminatory intimidation, ridicule and insult
- Because of sex?
- Directed at Plaintiff
- that the harassment directed at others was in her immediate work environment, and that she personally witnessed it. In Lyle, supra, 38 Cal.4th at pages 284-285, the California Supreme Court stated: “[S]exual conduct that involves or is aimed at persons other than the plaintiff is considered less offensive and severe than conduct that is directed at the plaintiff.
Under Title VII, a hostile work environment sexual harassment claim requires a plaintiff employee to show she was subjected to sexual advances, conduct, or comments that were (1) unwelcome (see Meritor, supra, 477 U.S. at p. 68, 106 S.Ct. 2399); (2) because of sex (Oncale v. Sundowner Offshore Services, Inc. (1998) 523 U.S. 75, 80-81, 118 S.Ct. 998, 140 L.Ed.2d 201 (Oncale)); and (3) sufficiently severe or pervasive to alter the conditions of her employment and create an abusive work environment (id. at p. 81, 118 S.Ct. 998; Meritor, supra, 477 U.S. at p. 67, 106 S.Ct. 2399). In addition, she must establish the offending conduct was imputable to her employer. (Meritor, supra, 477 U.S. at pp. 69-73, 106 S.Ct. 2399.)
UNDER FEHA – To establish a sexual harassment claim based on a theory of hostile work environment, a plaintiff must show that “1) she [or he] was subjected to verbal or physical conduct of a sexual nature, 2) this conduct was unwelcome, and 3) this conduct was ‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.’” Fuller v. City of Oakland, 47 F.3d 1522, 1527 (9th Cir. 1995)
The workplace must be both subjectively and objectively abusive. Id. Whether the workplace is subjectivelyabusive depends on the plaintiff’s perspective and whether the plaintiff indicated that the conduct was unwelcome. See Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864, 873 (9th Cir. 2001). Whether the workplace is objectively abusive is evaluated “from the perspective of a reasonable person with the same fundamental characteristics” as the plaintiff. Fuller, 47 F.3d at 1527. This inquiry turns on several factors including “frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Nichols, 256 F.3d at 872 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, 126 L. Ed. 2d 295, 114 S. Ct. 367 (1993)).