Sexual Harassment v. Gender Discrimination

The California Fair Employment and Housing Act (FEHA) and the United States Federal law in Title VII of the Civil Rights Act (Title VII) prohibit gender discrimination in the workplace and harassment based on the sex of an employee.

DSCN2330Harassment is conduct that is not necessary for the performance of a supervisory job, but is instead outside the scope of necessary job duties. The California Supreme Court in Jones v. The Lodge at Torrey Pines Partnership (2008) 42Cal. 4th 1158, 1164, noted that harassment is conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives.

Discrimination claims, by contrast, arise out of the performance of necessary personnel management duties, such as hiring, firing, and awarding promotions. Gender discrimination in the workplace refers to discrimination by management in personnel decisions based on an employee’s sex.

Under FEHA, an employer of five or more employees can be liable for discrimination, but for liability for harassment an employer only needs to have one or more employees. An employer must have fifteen employees for liability for claims, such as gender discrimination in the workplace, under Title VII.