What is Sexual Harassment

Written by Galen T. Shimoda and Jennet F. Zapata

Sometimes, employees have to work with supervisors or co-workers who make sexual comments on a regular basis and make the employees feel uncomfortable. In other circumstances, supervisors or co-workers may insinuate or state that employees who are willing to provide them with sexual favors will advance in their job positions or will obtain special benefits. In either situation, such statements make employees feel uncomfortable and conflicted about what they should do. Should they report it? What if nothing is done about the harassment and the employee is terminated? These are some of the difficult questions employees face when they are victims of sexual harassment.

Under the law, sexual harassment comes in two (2) forms. It can be either "quid pro quo" harassment or "hostile work environment." "Quid pro quo" sexual harassment occurs when a job benefit, a favorable performance review, or promotion is conditioned upon sexual favors. The essence of the quid pro quo theory is that a supervisor relies upon his authority to obtain such favors from an employee. "Hostile work environment" is found where sexual remarks or conduct are sufficiently severe or pervasive to create a hostile work environment. The remarks or conduct must interfere with an individual's work performance or create an intimidating, hostile, or offensive working environment.

Under the law, sexual harassment comes in two (2) forms. It can be either "quid pro quo" harassment or "hostile work environment." "Quid pro quo" sexual harassment occurs when a job benefit, a favorable performance review, or promotion is conditioned upon sexual favors. The essence of the quid pro quo theory is that a supervisor relies upon his authority to obtain such favors from an employee. "Hostile work environment" is found where sexual remarks or conduct are sufficiently severe or pervasive to create a hostile work environment. The remarks or conduct must interfere with an individual's work performance or create an intimidating, hostile, or offensive working environment.

The employer is also liable when the harassment ends in a tangible employment action against the employee. A tangible employment action means 1) a significant change in employment status, such as firing, failing to promote, reassignment, or a significant change in benefits, or 2) an action that causes economic harm. A constructive termination may also constitute a tangible employment action. A constructive termination occurs when an employee decides to quit his or her employment due to the acts of his or her supervisor. Employees claiming constructive termination must prove the working conditions were intolerable, or in other words, that a reasonable person in the employee's position would have felt compelled to resign. It is not an easy standard to meet, but at times the working conditions are so offensive and intolerable that no reasonable person could withstand them.

However, when no tangible employment action is taken against the employee, an employer may allege that the employer exercised reasonable care to prevent and promptly correct any sexually harassing behavior, and that the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employee or to avoid harm otherwise. "Hostile work environment" sexual harassment cases may involve various forms of verbal or physical conduct, of either a sexual or non-sexual nature, which have the purpose or effect of creating a hostile or offensive working environment. To establish a case, the employee must allege that (1) he or she was subjected to unwelcome sexual advances, conduct, or comments; (2) the harassment complained of was based on sex; and (3) the harassment was "so severe or pervasive" as to alter the conditions of the victim's employment and create an abusive working environment. Under California law, an employer is automatically liable for workplace harassment by a supervisor.

However, when no tangible employment action is taken against the employee, an employer may allege that the employer exercised reasonable care to prevent and promptly correct any sexually harassing behavior, and that the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employee or to avoid harm otherwise. "Hostile work environment" sexual harassment cases may involve various forms of verbal or physical conduct, of either a sexual or non-sexual nature, which have the purpose or effect of creating a hostile or offensive working environment. To establish a case, the employee must allege that (1) he or she was subjected to unwelcome sexual advances, conduct, or comments; (2) the harassment complained of was based on sex; and (3) the harassment was "so severe or pervasive" as to alter the conditions of the victim's employment and create an abusive working environment. Under California law, an employer is automatically liable for workplace harassment by a supervisor.

If you have experienced or are experiencing circumstances that you believe may be sexual harassment or discrimination, please contact the Shimoda Law Corp. to consult with an attorney.

The Shimoda Law Corp. legal articles should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The contents of these articles are intended for general information purposes only, and you are urged to consult a lawyer concerning your own situation and any specific legal questions you may have.

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