Sexual harassment is a serious issue that affects many people in the workplace. It can create a toxic environment, making it hard for employees to do their jobs. Understanding what sexual harassment is and how to protect yourself is crucial. Here, we will explore the different forms of sexual harassment and how to recognize them.
What Constitutes Sexual Harassment?
Sexual harassment, or sexually harassing conduct, can take several forms, but at its core, it is a question of power, not motivation. The California civil rights statute, the Fair Employment and Housing Act (FEHA), expressly provides, “Sexual harassment need not be motivated by sexual desire” (Cal. Gov’t Code § 12940(j)(1)(C)). The effect of sexually harassing conduct often is to intimidate or control a subordinate with considerably less power than the harasser.
Sexual harassment is not a part of the employment contract; no one signs up to be harassed when they agree to start working for an employer. Indeed, the California Supreme Court has described harassment as “conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives. Harassment is not conduct of a type necessary for management of the employer’s business or performance of the supervisory employee’s job” (Reno v. Baird, 1998).
To prevail on a claim for sexual harassment, a plaintiff needs to establish the harassment was because of the victim’s sex, meaning gender. Thus, while most sexual harassment claims are made by women against men, men can also make claims of sexual harassment against women, and men and women can make claims of same-sex harassment. It is also sexually harassing for supervisors to make comments to or about subordinates that the subordinate does not conform to gender stereotypes.
There Are Three Basic Forms of Sexual Harassment
There are three primary forms of sexual harassment: quid pro quo, physical touching or assault, and a hostile work environment.
- Quid Pro Quo: Quid pro quo, meaning “this for that” or “something for something,” is what people generally think of when someone mentions sexual harassment. It occurs when a job (or job retention or job promotion) is offered in exchange for unwanted sexual favors. Even if the victim appears to consent, it very likely could be because she is afraid to lose her job.
- Physical Touching or Assault: This form of sexual harassment involves unwanted physical acts such as kissing, hugging, grabbing, impeding/blocking the victim’s movement, or an actual sexual assault. It is one of the most commonly held perceptions of sexual harassment and can be very traumatic for the victim.
- Hostile Work Environment: Hostile work environment is a legal term often misunderstood. It does not refer to just any abusive or unpleasant work environment. For example, suppose your boss uses curse words and raises the volume when talking to subordinates. In that case, it is probably not sexual harassment—unless, of course, the boss only says those words to one gender because of their sex or the employer creates an atmosphere that is demeaning to one group and not another.
Sexual harassment is not limited by gender. Men can be victims, and harassment can occur between people of the same sex. Comments about a subordinate not conforming to gender stereotypes can also be considered sexual harassment.
Protect Yourself By Contacting Legal Counsel
If you or someone you know is experiencing sexual harassment at work, it is important to take action. Document the incidents, report them to your HR department, and seek legal advice. Our firm offers free consultations to help you understand your rights and options. Contact us today to schedule your free consultation and take the first step toward a safer workplace.
Leonard Sansanowicz
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