WHAT IS THE LAW ON SEXUAL HARASSMENT?

In California, courts will give one or more jury instructions on what constitutes sexual harassment. Jury instructions are supposed to be the embodiment of what the law is on a given area. The jury instructions for sexual harassment are not the same. California jury instructions on sexual harassment differ depending on what type of sexual harassment happened.

The first jury instruction on sexual harassment involves a type of sexual harassment called, “Quid pro quo.” Quid pro quo sexual harassment can involve both male and female harassers and victims. However, the below instruction uses the word, “Her.”

The jury instruction for Quid pro quo sexual harassment is as follows:

The Employee claims that the Employer subjected her to sexual harassment. To establish this claim, the Employee must prove all of the following:

• That the Employee was an employee of the Employer;
• That unwanted sexual advances were made to the Employee or she was subjected to other unwanted verbal or physical conduct of a sexual nature;
• That job benefits were conditioned, by words or conduct, on The Employee's acceptance of sexual advances or conduct; or That employment decisions affecting the Employee were made based on her acceptance or rejection of sexual advances or conduct;
• That supervisory or higher level employees of the employer were aware of any such conduct of non-supervisory employees or agents for the Employee, or should have been and failed to take immediate and corrective actions;
• That the Employee was harmed; and
• That the conduct was a substantial factor in causing the employee's harm.

In Latin, Quid pro quo means this for that. Now that you have read this jury instruction for quid pro quo sexual harassment, you now understand how this is a classic example of forced sexual harassment. A supervisor expects a subordinate to allow the supervisor to sexually harass the employee in exchange for job benefits. The second jury instruction a court may give in a sexual harassment case is Hostile Work Environment Harassment - Conduct Directed at the Employee. The instruction reads as follows:

The Employee claims that she was subjected to harassment based on being a woman. To establish this claim, the Employee must prove all of the following:

• That the Employee was an employee of The Employer;
• That the Employee was subjected to unwanted harassing conduct because she was a woman [could also be a man];
• That the harassing conduct was severe or pervasive;
• That a reasonable person in the Employee's circumstances would have considered the work environment to be hostile or abusive;
• That the Employee considered the work environment to be hostile or abusive;
• That a supervisor or manager engaged in the conduct; or
• That the Employer or its supervisors or agents knew or should have known of the conduct and failed to take immediate and appropriate corrective action;
• That the Employee was harmed; and
• That the conduct was a substantial factor in causing the employee's

Third, there is a jury instruction for sexual harassment called, “Hostile Work Environment Harassment—Conduct Directed at Others.” The jury instruction on Hostile Work Environment Harassment, Conduct Directed at Others is as follows:

The Employee claims that she was subjected to a hostile or abusive work environment because coworkers at the Employer were subjected to sexual harassment. To establish this claim, The Employee must prove all of the following:

• That the Employee was an employee of the employer;
• That the Employee, although not personally subjected to the unwanted harassing conduct of her coworkers, personally witnessed that harassing conduct in her immediate work environment;
• That the harassing conduct was severe or pervasive;
• That a reasonable woman in the Employee's circumstances would have considered the work environment to be hostile or abusive;
• That the Employee considered the work environment to be hostile or abusive toward women;
• That a supervisor engaged in the conduct; or That the Employer or its supervisors or agents knew or should have known of the conduct and failed to take immediate and appropriate corrective action;
• That the Employee was harmed; and
• That the conduct was a substantial factor in causing the employee's harm.

The fourth jury instruction on sexual harassment is entitled, “Widespread sexual favoritism directed at Others.” This instruction is very similar to the other sexual harassment jury instructions, but it requires the sexual favoritism in the workplace to be widespread and also severe or pervasive. Of course a reasonable person in the victim's position must consider the widespread sexual favoritism offensive or hostile. The employer must have encouraged or participated in the widespread sexual favoritism. This could be done if supervisors or managers directly engaged in the sexual favoritism, or knew of it and failed to stop it.

In all of these instructions, you may have wondered exactly what harassing conduct is in the context of sexual harassment. Harassing conduct is defined to include any of the following:

• Verbal harassment such as obscene language, demeaning comments, slurs, threats, requests for dates, sexual comments, comments aimed at obtaining sex or a date;
• Physical harassment such as unwanted touching, assault or physical interference with normal work or movement;
• Visual harassment;
• Unwanted sexual advances.

The term severe and pervasive has also been repeated in these sexual harassment jury instructions. “Severe or pervasive” means conduct that alters the conditions of employment and creates a hostile or abusive work environment.The instruction on what severe and pervasive sexual harassment is as follows:

In determining whether the conduct was severe or pervasive, you should consider all the circumstances. You may consider any or all of the following:

1. The nature of the conduct;
2. How often, and over what period of time, the conduct occurred;
3. The circumstances under which the conduct occurred;
4. Whether the conduct was physically threatening or humiliating;
5. The extent to which the conduct unreasonably interfered with an employee's work performance.

The other issue you may have asked is who is a supervisor for the purposes of sexual harassment? Supervisors are defined in California jury instructions on sexual harassment as: Supervisors have the discretion and authority:

1. To hire, transfer, promote, assign, reward, discipline, or discharge or schedule other employees or effectively to recommend any of these actions;
2. To act on the grievances of other employees or effectively to recommend action on grievances; or
3. To direct the employee's daily work activities.

Besides being legally responsible for sexual harassment to their employees, employers are liable for sexual harassment if they fail to Prevent Harassment, Discrimination, or Retaliation. The standard on holding employers responsible for failing to prevent discrimination, sexual harassment, or retaliation is as follows:

The employee claims that the Employer failed to prevent sexual harassment and/or retaliation. To establish this claim, the Employee must prove all of the following:

1. That the employee was an employee of the Employer;
2. That the employee was subjected to either sexually harassing conduct or retaliation in the course of her employment;
3. That the employer failed to take reasonable steps to prevent the harassment or retaliation;
4. That the employee was harmed; and
5. That the employer's failure to take reasonable steps to prevent either the harassment, discrimination, or retaliation was a substantial factor in causing the employee's harm.

If you have got to this point in this article on sexual harassment, congratulations. You have read the actual legal instructions on what sexual harassment is in California. If you have understood these instructions, congratulations. If you have questions about what sexual harassment is under California law please contact our office.

We have handled hundreds of sexual harassment cases. Firm founder, Karl Gerber, was first was quoted as an expert on sexual harassment more than ten years ago. He has handled all types of sexual harassment cases including men on men, women on women, women on men, gay harassment, and the sexual harassment of lesbians. Click here to view case results.

Karl Gerber's sexual harassment case results include:

• $675,000 for the sexual harassment of Ontario warehouse workers
• $315,000 for the sexual assault of a San Fernando Valley gas station worker
• $305,000 for the sexual harassment of a pizza delivery woman in El Monte
• $270,000 for the sexual harassment of two supermarket workers in San Fernando
• $225,000 due to customer sexual harassment in a Van Nuys retail store
• 
  Larson arbitration award gay male on straight male sexual harassment case
• $195,000 for the sexual harassment of a young college graduate in Camarillo
• $160,000 for the sexual harassment of a Sylmar factory worker
• $150,000 for the sexual harassment of a Thousand Oaks property manager

To discuss a sexual harassment situation at work call (323) 525-1600. Over 20 years experience representing victims of sexual harassment.