Sexual harassment can include such conduct as asking for sexual favors, sexual touching, or offensive language. Not all sexual conduct in the workplace is illegal “sexual harassment.” Generally, the conduct must be so frequent or severe that it creates a hostile or offensive work environment or results in an adverse employment decision (such as a firing).
In California, harassment laws are part of the Fair Employment and Housing Act (FEHA). The California Department of Fair Employment and Housing (DFEH) enforces FEHA. Harassment is defined to include:5
- Verbal harassment, such as epithets, derogatory comments or slurs
- Physical harassment, such as assault or physical interference with movement or work
- Visual harassment, such as derogatory cartoons, drawings or posters
- Sexual favors, e.g., employment benefits in exchange for unwanted sexual advances (often referred to as quid pro quo harassment)
FEHA prohibits sexual harassment because of a person’s:
- Childbirth, breastfeeding (and related medical conditions);
- Sexual orientation;
- Gender identity;
- Gender expression; and
- Transgender status.
Harassment based on the perception of any of these characteristics is also prohibited. Harassment against any other protected category of individuals, such as harassment based on race, national origin or religion, is also prohibited.
It doesn’t matter if the harasser and the victim are of the same sex. Sexual harassment includes unwelcome conduct of a verbal or physical nature, regardless of the gender, gender identity, gender expression or sexual orientation of the harasser or the victim.7
It also doesn’t matter if the harassing conduct is motivated by sexual desire. Under FEHA, sexually harassing conduct does not need to be motivated by sexual desire to be considered unlawful.8 For instance, in some harassment situations, the perpetrator acts out of hostility toward the individual because of the individual’s gender or sexual orientation, not out of sexual desire.