In this chapter we describe and give examples of both quid pro quo sexual harassment and hostile work environment sexual harassment. Quid pro quo sexual harassment generally involves a person in power pressuring an employee for s
exual favors in exchange for advancement in the workplace or under the threat of adverse employment action. A single instance of quid pro quo sexual harassment is sufficient for the basis of a lawsuit. In contrast, a single incident of hostile work environment sexual harassment does not qualify as a sufficient basis for a lawsuit, unless the incident is “severe,” that is unless the incident is very offensive.
In this chapter, we give examples of actual cases where the courts have found that the conduct involved was sufficiently severe or pervasive for the purposes of bringing a lawsuit, and we give examples where the courts have found that the conduct involved was insufficient to support a lawsuit for hostile work environment. A victim of sexual harassment should look for a case that parallels his or her experience in the workplace.
We also discuss indirect victims of sexual harassment who under certain circumstances can also bring claims and lawsuits for sexual harassment, even though the harassing behavior was not directed to them.
II. What is Quid Pro Quo Sexual Harassment?
“Quid pro quo” translates from Latin to English as “this for that.” The basic idea is that of an exchange. I do something for you, and you, in turn, do something for me. You may have heard the saying, “You scratch my back and I’ll scratch yours.” This conveys the same underlying message, and it is what is at the heart of quid pro quo sexual harassment claims.
Quid pro quo sexual harassment occurs when a supervisor makes sexual conduct of an employee a condition for employment benefits or advancement, or a condition for avoiding adverse employment action. Adverse employment action may include poor performance reviews and preclusion from advancement or salary increases.
In the case of Mogilefsky v. Superior Court, the court summarized what constitutes quid pro quo sexual harassment, stating:
A cause of action for quid pro quo sexual harassment involves the behavior most commonly regarded as sexual harassment, including, e.g., sexual propositions, unwarranted graphic discussion of sexual acts, and commentary on the employee’s body and the sexual uses to which it could be put. To state the cause of action on this theory, it is sufficient to allege that a term of employment was expressly or impliedly conditioned upon acceptance of a supervisor’s unwelcome sexual advances.
A. What Must a Victim Show to Prevail on a Quid Pro Quo Sexual Harassment Claim?
A victim must show by a preponderance of the evidence that the harasser made unwanted sexual advances or directed behavior of a sexual nature to him or her as a condition for receiving concrete employee benefits and/or for avoiding adverse employment action. A “preponderance of the evidence” means that after looking at all the evidence, it is more likely than not that the claimed events occurred.
California Judicial Council Jury Instruction, CACI 2520 states that in order to prove quid pro quo sexual harassment against an employer, a victim must prove the following factual elements:
- That the plaintiff was an employee of the defendant, applied to the defendant for a job, or was a person providing services pursuant to a contract with the defendant;
- That the alleged harasser made unwanted sexual advances to the plaintiff or engaged in other unwanted verbal or physical conduct of a sexual nature;
- That job benefits were conditioned, by words or conduct, on the plaintiff’s acceptance of the alleged harasser’s sexual advances or conduct; or that employment decisions affecting the plaintiff were made based on the plaintiff’s acceptance or rejection of the harasser’s sexual advances or conduct;
- That at the time of the alleged harasser’s conduct, the alleged harasser was a supervisor or agent for the defendant;
- That the plaintiff was harmed; and
- That the alleged harasser’s conduct was a substantial factor in causing plaintiff’s harm.
CASE IN POINT: Unwanted Sexual Proposition in Exchange for Offer of Promotion
In Bihun v. AT&T Information Systems, Inc., the plaintiff, Oksana, sued for sexual harassment by a senior official, Peter Fellows. On Fellows’ and Oksana’s first meeting, he winked at her and lightly brushed his hand against hers. Later that month, Fellows walked into to the office Oksana was in with his shirt off and pants unzipped. He pressed his body against Oksana’s shoulder and she left the office immediately. On another occasion at a birthday luncheon, Fellows rubbed Oksana’s leg with his foot. After she kicked it away, Fellows stood, thrust his groin at her, and told her that there was a food stain on the groin area of his pants and asked her to rub it off.
Later that same day, Fellows told Oksana to come to his office. After Oksana entered his office, Fellows asked her to have dinner with him that evening. She said no. He then asked her to go to the beach with him. She said no.
The following week, Fellows came into Oksana’s office and told her that they were having dinner together that night. Oksana said no, but Fellows insisted, telling her it was “strictly business.” Oksana felt like she could not refuse. They met at the restaurant and Fellows gave Oksana flowers. He told her that he was unhappy about his sex life with his wife, and so needed to have affairs with other women. Fellows then told Oksana that the company was going to have a large reorganization soon and that “if she played her cards right” she could have any job she desired. He asked Oksana if she wanted a particular coworker’s job, remarking that he could make that coworker disappear. Fellows then leaned over Oksana, played with her earring, and asked her to have an affair with him. He then told her that he once hired a waitress to be his secretary because of her large breasts.
The next day, Oksana told a coworker about what had happened. The coworker went to Fellows and complained, but Fellows told her that it was none of her business. After that point, Fellows cupped Oksana’s breast as they passed in a hallway, asked her if she had “softened up yet” and asked her if she had changed her mind. She had not.
Fellows then retaliated against Oksana for rejecting him. He ultimately took all of her responsibilities away, leaving her nothing to do at work. Oksana went on disability leave. She complained several times to supervisors, but no one ever contacted her or her coworker regarding the complaints. When she did return to work, she was demoted. Oksana then resigned. Oksana won her case against her employer on her claims of sexual harassment and retaliation.
III. What is Hostile Work Environment Sexual Harassment?
“Hostile work environment” sexual harassment occurs when an employee is subject to unwelcome advances, sexual innuendos, or offensive gender-related language that is sufficiently severe or pervasive from the perspective of a reasonable person of the same gender as the offended employee.
This type of harassment must be sufficiently severe or pervasive to alter the conditions of the offended employee’s employment and create an abusive environment. A single instance of sexual harassment in the hostile work environment context may be sufficient if the conduct is severe enough, but repeated instances increase the pervasiveness of the events, so that a reasonable person would be more likely to find the conduct sexually harassing due to its repetition.
It is possible for an employee to make a hostile work environment claim when the harassment is not directed to the complaining employee, if the harassment permeated the complaining employee’s work environment. Thus, an employee can make a hostile work environment claim if the employee witnessed the harassing conduct and the conduct was severe or pervasive enough to be considered harassment by a reasonable person with the same fundamental characteristics (e.g., age, race, gender) as the complaining employee.
Although favoritism by a supervisor towards an employee with whom the supervisor is having a consensual sexual affair does not ordinarily constitute harassment of other employees, a pattern of sexual favoritism may constitute a hostile work environment in the event that the message by management is that sexual affairs are a way to get ahead in the workplace.
A. What Must a Victim Show to Prevail on a Hostile Work Environment Sexual Harassment Claim?
A victim must establish that:
- He or she was subject to unwelcome sexual harassment;
- The harassment was based on the victim’s sex;
- The harassment was sufficiently severe or pervasive so as to alter the conditions of employment and create an abusive working environment; and
- The relationship between the employer and the person committing the harassing conduct is adequate to impose liability on the employer. (See Chapter Five, Employer and Individual Responsibilities for further discussion of an employer’s liability for sexual harassment.)
IV. What is Not a Hostile Work Environment?
FEHA prohibits harassing conduct that creates a hostile work environment on the basis of sex. Keep in mind, however, that every case is different, and the full context and surrounding circumstances must be taken into consideration. The following Case In Point is an example of a case where the Supreme Court of California found no hostile work environment sexual harassment where the sexual conduct was not directed at the plaintiff and was not sufficiently severe or pervasive considering the social context.
CASE IN POINT: The Friends Case
You may associate the hit TV sitcom Friends with the catchy “I’ll be There for You” theme song, comedic one-liners, and the never-ending relationship saga of Rachel and Ross. This TV show also made its way into the sexual harassment law arena in 2006 through the California Supreme Court case of Lyle v. Warner Bros. Television Productions (“Lyle” or “Friends”).
In the Friends case, a female writer’s assistant filed suit against male comedy writers for sexual harassment. The case revolved around whether the writers’ conduct, which included sexual antics, graphic sexual discussions, and lewd gestures such as pantomiming of masturbation, constituted a work environment which was hostile and abusive on the basis of sex.
In order for there to be a hostile work environment, sexual harassment must be sufficiently severe or pervasive from the perspective of a reasonable person with the same fundamental characteristics of the plaintiff.
The California Supreme Court in the Friends case found that the writers’ sexual behavior was not sufficiently severe or pervasive because the sexual conduct was not directed at the plaintiff or other women in the workplace and because the Friends production was a creative workplace focused on writing scripts for a sexually-themed comedy show. The California Supreme Court said, “Because the derogatory comments did not involve plaintiff, she was obligated to set forth specific facts from which a reasonable trier of fact could find the conduct ‘permeated’ her direct workplace environment and was ‘pervasive and destructive.’”
In determining whether conduct permeated the purported victim’s work environment and was pervasive and destructive, the trier of fact should consider all the surrounding circumstances of the case. In the Friends case, the California Supreme Court found that the writers’ conduct did not constitute unlawful harassment and was “neither surprising nor unreasonable from a creative standpoint.” The Court said, “Common sense, and an appropriate sensibility to social context, will enable courts and juries to distinguish between simple teasing or roughhousing… and conduct which a reasonable person in the plaintiff’s position would find severely hostile or abusive.”
In other words, whether sexual conduct will permeate a victim’s workplace and be pervasive and destructive will depend on what type of job the victim holds. For example, if the explicit sexual behavior of the writers in Friends, such as telling graphic sexual stories and pantomiming of masturbation, took place instead at an accounting firm’s daily meetings over an extended course of time, it may very well be pervasive and destructive. On the other hand, if a female bartender is working at a strip club, and is exposed daily to graphic sexual conduct, the social context would indicate that the behavior is not pervasive and destructive and does not create a hostile work environment.
V. Harassment Must Be Based on Gender
In order to prove that the harassment a victim suffered was based on his or her sex, the victim must show that he or she was treated differently because of the victim’s sex. When the sexual innuendos or gender-related speech, such as talk of sex in the workplace, crude language, or vulgar gestures, are directed toward an employee or toward the employee’s gender in general, this conduct will constitute hostile work environment sexual harassment if it is sufficiently severe or pervasive.
This does not require that the harasser be a different sex than the harassed. Both California courts and the Supreme Court of the United States have found that harassment in the workplace can violate the law against discrimination “because of sex” when the harasser and the harassed are of the same sex.
A. Hostile Work Environment Must Be Based on Gender, But Need Not Necessarily Be Sexual in Nature
Hostile work environment sexual harassment need not necessarily be based on language or conduct of a sexual nature. What is necessary is that there is a hostile work environment because of the victim’s sex. If a female employee is being harassed at work because her supervisor is misogynistic (dislikes women), and the supervisor’s harassment is creating a hostile work environment, then the employee has the basis for a lawsuit.
CASE IN POINT: Yelling in the Workplace
Screaming and yelling by male supervisors to female employees at work may constitute sexual harassment that is actionable if the screamer yells more forcefully or more frequently at female employees than at male employees and in a manner that affects women more adversely than it affects men in the workplace. Such non-sexual behavior can constitute sexual harassment in the nature of a hostile work environment, as confirmed in the case of EEOC/Christopher v. National Education Association by the Ninth Circuit of the United States Court of Appeals in 2005.
In that case, three women sued their employer for sex-based hostile work environment due to the behavior of their supervisor, Thomas Harvey. Harvey frequently screamed at his female employees with little or no provocation. The shouting was often profane and in public, and the court found that it clearly intimidated female employees. These incidents between Harvey and female employees were not isolated, but created a “generic atmosphere of intimidation in the workplace” causing them to cry, feel panicked and physically threatened, avoid contact with Harvey, and avoid submitting overtime hours for fear of angering Harvey. Their only options were to call the police and ultimately resign.
The court found that whatever the motive for the harassment, the ultimate question is whether the harasser’s behavior affected women more adversely than it affected men. In this case, it was clear that Harvey’s behavior affected women more adversely, as his threatening behavior was more frequent and more severe towards women than men.
Garcia v. Los Banos Unified School District supports the finding in EEOC/Christopher v. National Education Association that non-sexual behavior including yelling can constitute sexual harassment if women are subjected to the conduct more often and more intensely than men. In Garcia, the plaintiff’s supervisor raised his voice and used profanity with almost everyone in the workplace, both men and women. However, the female plaintiff was subjected to this conduct “more often and more intensely” than men were, and the supervisor’s treatment of the plaintiff was “more severely abusive, as distinct from bantering or joking in tone.”
The Garcia court confirmed that workplace conduct does not need to involve proposals of sexual activity or be motivated by sexual desire in order for the conduct to constitute hostile work environment sexual harassment. It can be sufficient to compare how the alleged harasser treated members of both sexes in a mixed-sex workplace, and to show that one sex was treated adversely.
VI. Sufficiently Severe or Pervasive
In order for your hostile work environment lawsuit to be viable, the harassment you suffered must be sufficiently severe or pervasive to alter your employment and create a hostile and abusive environment. There is no bright line rule for what conduct is “severe or pervasive enough” to constitute a hostile work environment. There is a level of uncertainty is this area of the law, and both the individual facts of a victim’s case and the court in which it is heard will affect whether the misconduct suffered will constitute unlawful sexual harassment.
Although there is not a bright line test in deciding whether harassing conduct is sufficiently severe or pervasive, the case law does give us some guidelines as to what conduct rises to the level of unlawful hostile work environment sexual harassment.
A. What is Sufficiently Severe?
In order for sexual harassment to be sufficiently severe to constitute hostile work environment sexual harassment, it must be seriously offensive and egregious conduct. Severity depends on the gravity and threatening or abusive nature of the harassing conduct.
Offensive touching or threatening behavior can constitute conduct that is sufficiently severe to create a hostile work environment. The California Supreme Court in the Friends Case (Lyle), stated that if harassment is not “severe in the extreme,” more than a few harassing incidents must have occurred to create a hostile work environment. The Court recognized that in order for a single incident of harassment to be sufficiently severe, it must involve “egregious conduct akin to a physical assault or threat thereof.”
Whether offensive touching will be considered severe will depend on how offensive and extreme the touching is. For example, rape, the most offensive and threatening kind of touching, clearly will be considered sufficiently severe. Conversely, mildly offensive touching, such as touching of a purported victim’s hair or arms, most likely will not be considered sufficiently severe to create a hostile work environment. Most cases are not clear cut, and it will be up to a judge or jury to decide whether the particular harassment suffered by a victim is sufficiently severe to create a hostile work environment.
B. What is Sufficiently Pervasive?
Harassment is sufficiently pervasive if it permeates the workplace and alters the victim’s working conditions so as to create a hostile and abusive working environment. The California Supreme Court in the Friends case (Lyle) summarized what is necessary for harassment to be considered sufficiently pervasive and said:
With respect to the pervasiveness of harassment, courts have held an employee generally cannot recover for harassment that is occasional, isolated, sporadic, or trivial; rather the employee must show a concerted pattern of harassment of a repeated, routine, or a generalized nature.
For example, if your supervisor asks you for a date a few times over the course of a few months, even after your immediate refusal to each invitation, this most likely will not be considered sufficiently pervasive. Although such romantic requests may offend you or cause you to feel awkward, such behavior is not so repetitive and intrusive that it permeated your workplace, creating a destructive and abusive environment.
On the other hand, if your supervisor is propositioning you at work every day, staring at you in a threatening way, and talking explicitly about the sexual things he or she imagines you engaging in, this pattern of harassment permeates your workplace and creates a destructive and abusive environment.
C. Is a Single Incident Enough?
While a single incident of sexual harassment may be sufficient to establish a hostile work environment, it is much more difficult to prove. The less frequent the harassment, the more severe it must be to constitute an unlawful hostile work environment to meet the sufficiently severe or pervasive standard. In order for a single instance of sexual harassment to constitute a hostile work environment, it generally must involve offensive touching or threatening behavior, as explained by the California Supreme Court in the Friends case (Lyle).
A case involving racial discrimination is instructive. In Dee v. Vintage Petroleum, Inc., the court found that a hostile work environment could be inferred from a single racial slur plus other evidence of abuse by the plaintiff’s supervisor. In that case, where there was a remark by the supervisor that “it is your Filipino understanding versus mine” after the plaintiff complained that the supervisor told her to lie, it was reasonable to infer that this statement was not an isolated event, but instead that it explained the supervisor’s motivation for creating an abusive environment for plaintiff to intimidate her so that she would not complain to higher management.
In Brooks v. City of San Mateo, the court stated, “[A] sexual assault by a supervisor, even on a single occasion, may well be sufficiently severe so as to alter the conditions of employment and give rise to a hostile work environment claim.”
However, in Lyle, the California Supreme Court stated:
When the harassing conduct is not severe in the extreme, more than a few isolated incidents must have occurred to prove a claim based on working conditions. (See Herberg v. California Institute of the Arts… [liability for sexual harassment may not be imposed based on a single incident that does not involve egregious conduct akin to a physical assault or threat thereof]).
But physical conduct is not always unlawful sexual harassment. For examples, in Downes v. F.A.A the court ruled that touching of the plaintiff’s hair on two occasions was not pervasive. Surely it makes sense that all physical contact is not sexual harassment; the contact must be offensive and severe. Shaking someone’s hand, or similar physical conduct that is not offensive, would not cause a hostile work environment.
A court will consider the totality of the circumstances in order to determine if the facts of a victim’s case rise to the level of unlawful hostile work environment sexual harassment.
D. Look to the Totality of the Circumstances
The setting and atmosphere in which harassing behavior takes place will impact whether the harassment is sufficiently severe or pervasive to create a hostile work environment, and courts will look to the “totality of the circumstances” in making this determination.
In looking at all the circumstances of a case, special attention should be given to the conduct’s frequency, severity, whether the conduct interferes with the purported victim’s work performance, and whether it is threatening and/or humiliating, or instead is “merely an offensive utterance.”
Taking into consideration the totality of the circumstances also means that the trier of fact will take into account the social setting of the purported victim’s workplace. In the Friends case, the fact that the defendant comedy writers’ sexual behavior took place in a setting in which they were brainstorming material for a sexually-charged comedy show and that the plaintiff had been warned when she was hired that she would be exposed to sexual jokes affected the Court’s decision that the sexual behavior was not sufficiently severe or pervasive to create a hostile work environment. The California Supreme Court in the Friends case (Lyle) said:
The objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff’s position, considering “all the circumstances.”… That inquiry requires careful consideration of the social context in which particular behavior occurs and is experienced by its target.
In regard to retaliation claims, the California Supreme Court’s opinion in Yanowitz v. L’Oreal USA, Inc, parallels the above consideration of the totality of the circumstances. (See Chapter Six on retaliation for further discussion.)
In order to give you a better understanding of what types of factual scenarios are considered by the courts to be severe or pervasive enough, in the next two sections we summarize the facts of a variety of cases where courts deemed the behavior involved could constitute unlawful hostile work environment harassment and where courts found behavior insufficient to constitute a hostile work environment. Both federal and California cases are included because according to the California Supreme Court, in light of the many similarities between Title VII and FEHA, “California courts frequently seek guidance from Title VII decisions when interpreting the FEHA and its prohibitions against sexual harassment.”
E. Conduct Sufficiently Severe or Pervasive to Create an Unlawful Hostile Work Environment
The following Cases In Point demonstrate conduct that can be considered sufficiently severe or pervasive to find hostile work environment sexual harassment.
CASE IN POINT: Coerced Sexual Behavior
In the United States Supreme Court case of Meritor Savings Bank v. Vinson, the plaintiff agreed to over 40 acts of intercourse with her supervisor after repeated demands for sexual favors. The supervisor “fondled her in front of other employees, followed her into the women’s restroom when she went there alone, exposed himself to her, and even forcibly raped her on several occasions.” This set of facts obviously rose to the level of being sufficiently severe to constitute an unlawful hostile work environment.
CASE IN POINT: Foul Language
In Department of Fair Employment and Housing v. Nulton, there was a hostile work environment where, among other things, a male employee’s repeated use of foul sex-based terms, such as “f-ing b—–” and others was severe within the meaning of FEHA “given these sex-based terms’ inherently degrading and demeaning nature.”
CASE IN POINT: Offensive Sexual References
In Steiner v. Showboat Operating Company, the Ninth Circuit found conduct sufficient to constitute a hostile work environment where the defendant had used the terms “dumb f-ing broad” and “f-ing c—-.” Even though the supervisor in that case was shown to be abusive to men, his abuse of women was different in that he relied on “sexual epithets, offensive, explicit references to women’s bodies and sexual conduct.” Similarly, in Burns v. McGregor Electronic Industries, Inc., the Eighth Circuit Court stated that vulgar and offensive phrases are “widely recognized as not only improper, but as intensely degrading.”
CASE IN POINT: Pornographic Pictures
In Andrews v. City of Philadelphia, the defendant used derogatory and insulting terms relating to women and posted pornographic pictures in common areas at the place of employment, as well as in the plaintiff’s personal work spaces. The Federal Third Circuit Court of Appeal found: “pervasive use of derogatory and insulting terms relating to women generally and addressed to female employees personally may serve as evidence of a hostile work environment.”
CASE IN POINT: Nicknames and Centerfolds
In Lispett v. University of Puerto Rico, sexual harassment was found where the plaintiff and other female residents were given sex-based nicknames, Playboy centerfolds were displayed where residents ate their meals and conducted meetings, and misogynistic verbal attacks were repeatedly made.
CASE IN POINT: Threatening Stares
In Birschtein v. New United Motor Manufacturing, Inc., the court found that where a coworker repeatedly stared at the plaintiff, after the plaintiff had already complained to management about the coworker’s explicit acts of sexual harassment, such facts could constitute an unlawful hostile work environment, and so reversed the summary judgment that had been granted by the lower court.
Coworker Bonilla had asked the plaintiff, Michelle, for a date three or four times. During this same time period, he had told her that he wanted to “eat her.” When Michelle asked him what he meant, Bonilla responded, “I want to eat you all over.” Upon hearing his response, Michelle yelled at him to leave. A few days later Bonilla told Michelle that he was having fantasies about her and described his fantasies in detail, which involved Bonilla putting Michelle in a bathtub and bathing her. Again upset, Michelle yelled at Bonilla to leave her alone. During the same period when Michelle would go outside for lunch and breaks, coworkers would tell her that Bonilla was looking for her. Michelle was so scared that she carried mace to work and complained to her boss. Following Michelle’s complaint, Bonilla stopped talking to Michelle, but over the course of six months he would drive by her workstation five or more times per day to make deliveries and would invariably stare directly at her “for at least several seconds.”
The court found that threatening stares could constitute sexual harassment, and stated:
Nor can we agree that, particularly in view of Bonilla’s prior conduct, repeated acts of staring at a fellow worker cannot qualify as actionable sexual harassment as a matter of law… In Hirase-Doi v. U.S. West Communications, Inc.…, for example, a hostile environment case, the plaintiff alleged that Coleman, a fellow male employee, had engaged in sexually offensive behavior toward her and several female colleagues over several months. Much as defendant does here, the employer there argued that many of the plaintiff’s complaints ‘involved only threatening stares – not sexual harassment.’ … Rejecting the contention that threatening stares could not constitute actionable sexual harassment, the Tenth Circuit Court of Appeals said that “we have previously adopted a standard that ‘any harassment or other unequal treatment of an employee… that would not occur but for the sex of the employee may, if sufficiently … pervasive, comprise an illegal condition of employment under Title VII.’… We believe that Coleman’s alleged threatening stares… in apparent retaliation for the complaints about his sexual harassment, were sufficiently related to the prior alleged sexual harassment that they could be found to constitute continuing sexual harassment…”
CASE IN POINT: Verbal Abuse and Touching
In Hall v. Gus Const. Co., Inc., the plaintiff suffered from continuous verbal abuse, requests for sex, unwanted touching at work, and urinating in the plaintiff’s water bottles and gas tank. This pattern of continuous harassment constitutes unlawful hostile work environment sexual harassment.
CASE IN POINT: Preferential Treatment for Submission
In Broderick v. Ruder, the plaintiff was sexually harassed by several male supervisors and was able to show that the employer gave preferential treatment to female employees who submitted to sexual advances and conduct, and that it was common knowledge at the workplace that women were treated better if they submitted to sexual conduct. This set of circumstances constituted an unlawful hostile work environment. (See the discussion of Miller v. Department of Corrections in Section VII of this chapter discussing favoritism.)
CASE IN POINT: Repeated Requests for Sex
In Yates v. Avco Corp., the plaintiff’s supervisors constantly made rude comments to her and repetitively made requests for sexual favors, and this created an unlawful hostile work environment.
In Henson v. City of Dundee, an unlawful hostile work environment was found where a police chief made numerous tirades, used vulgar language, and made demeaning sexual inquiries, as well as repeatedly asking the plaintiff to have sexual relations with him.
In Bundy v. Jackson, the plaintiff’s supervisors directed sexual propositions, sexual stereotypes and vulgar language at her, such as “any man in his right mind would want to rape you.” The court found that such misconduct constitutes an unlawful hostile work environment.
CASE IN POINT: Vulgar Slurs
In Katz v. Dole, a female air traffic controller was subjected to an unlawful hostile work environment where her coworker had routinely inflicted extremely vulgar and offensive sexual slurs and insults.
F. Conduct Not Sufficiently Severe or Pervasive to Create an Unlawful Hostile Work Environment
The following Cases In Point demonstrate conduct which was not sufficiently severe or pervasive to constitute hostile work environment sexual harassment.
CASE IN POINT: Rude and Inappropriate Behavior
In 2007, in the case of Mokler v. County of Orange, the Director of Orange County’s Office on Aging, Pamela Mokler, filed a lawsuit claiming hostile work environment sexual harassment based on the conduct of a board member, Mr. Norby.
Norby’s harassment consisted of three incidents over a five-week period. During the lunch break at an offsite budget meeting, Norby asked Mokler if she was married and called her an “aging nun” after she told him she was not married. About a week later at a hotel celebration Norby “took Mokler by the arm, pulled her to his body, and asked, ‘Did you come here to lobby me?’ When she answered no, Norby responded: ‘Why not? These women are lobbying me.’ He told Mokler she had a nice suit and nice legs, and looked up and down at her.” About a month later, in Norby’s office, he told her she looked nice and put his arm around her, asked her where she lived and demanded to know her exact address. He then put his arm around her again, and in the process, his arm rubbed against her breast. He then made an off-color racial remark. The court found that these incidents of harassment did not constitute unlawful hostile work environment sexual harassment because they were not severe or pervasive enough. The court’s reasoning went as follows:
Following established precedent, we conclude these acts of harassment fall short of establishing ‘a pattern of continuous, pervasive harassment… necessary to show a hostile work environment under FEHA. Norby did not supervise Mokler or work in the same building with her. The first incident involved no touching or sexual remarks; rather, Norby uttered an isolated but boorish comment on Mokler’s marital status. The second incident did not occur at work, and involved a minor suggestive remark and nonsexual touching. The third incident involved touching when Norby placed his arm around Mokler and rubbed his arm against her breast in the process. The touching, however, was brief and did not constitute an extreme act of harassment. Norby’s request for Mokler’s home address was brazen, but this conduct falls short of what the law requires to establish a hostile work environment. Norby’s derogatory statement regarding Mexicans was unmistakably foul and offensive, but not sexual.
Taken as a whole, the foregoing acts demonstrate rude, inappropriate behavior. To be actionable, however, a workplace must be “permeated with discriminatory intimidation, ridicule and insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.”
CASE IN POINT: Offensive Artwork
In Herberg v. California Inst. Of Arts, the court held that a 24-hour display of offensive artwork did not constitute an unlawful hostile work environment. In that case, students at a private art institute displayed a pencil drawing, about 25 by 40 inches, depicting faculty and staff members of the institute nude and engaged in various sexual acts.
Herberg, the 82-year-old plaintiff depicted in the center of the art piece, never actually saw the drawing. Upon learning of the drawing, Herberg left work immediately. She suffered an asthma attack later that day and developed problems with eating and sleeping. She never returned to her job at the institute. The court held that this incident, “although doubtless upsetting to the plaintiffs, did not create a workplace that was ‘so discriminatory and abusive that it unreasonably interfere[d] with the job performance of those harassed.’”
The court also takes into consideration the context and surrounding circumstances of harassment. The court in Herberg states:
The context in which the alleged harassment took place… supports our decision…. We see a vast difference between posting obscene cartoons in a men’s room, as was done in Bennett … and the display of The Last Art piece in the designated gallery area at an art school. CalArt’s noncensorship policy was widely distributed to both students and employees. In our view it was reasonable to expect that exhibitions of student artwork would, from time to time, include sexually explicit material. Although we reject CalArt’s contention that its anticensorship policy and the First Amendment exempt it from the laws against sexual harassment, in this case the context of the display further militates against a finding of severe or pervasive harassment.
The Herberg court takes a strict view of what is necessary for a single incident of sexual harassment to constitute an unlawful hostile work environment. Herberg states that in order for liability for sexual harassment for a single incident, that incident must involve “egregious conduct akin to a physical assault or a threat of physical assault.”
Herberg goes on to cite three federal cases in which the facts are fairly egregious, but the court did not find hostile work environment sexual harassment. In the worst of these three cited federal cases, the 1987 case of Del Valle Fontanez v. Aponte, the defendant “pressed [the plaintiff] against the door with his body” and the plaintiff “felt defendant’s erect sexual organ against her body” twice in a five-minute period, and yet the court found that such conduct was not severe or pervasive enough to constitute a hostile work environment.
State courts in California are not bound by the holdings of these particular federal cases; however, these citations in Herberg are troubling because Herberg is cited by the California Supreme Court in Lyle v. Warner Bros. Television Prods., the Friends case discussed previously. It is likely that the California Supreme Court will uphold the general rule confirmed in Lyle that offensive touching (battery) or threatening behavior (assault) will be sufficient to present a case to a jury to decide if there has been sexual harassment. But see Downes v. FAA below, where a coworker touched a women’s hair twice and a court found that was not enough to constitute sexual harassment.
CASE IN POINT: Single Proposition
In Jones v. Flagship Intern, the plaintiff’s supervisor made two suggestive remarks and a single proposition and the court found that this did not amount to an unlawful hostile work environment.
CASE IN POINT: Vulgarity and Nude Pictures
In Rabidue v. Osceola Refining Co., the court found that the totality of the workplace had not been affected for the plaintiff, even though a coworker was extremely vulgar and nude pictures were present.
CASE IN POINT: Winks and Proposition
In Scott v. Sears, Roebuck & Co., isolated winks, suggestive remarks and a coworker’s single request for a date did not constitute unlawful hostile work environment sexual harassment of the plaintiff.
CASE IN POINT: Touching Hair
In Downes v. F.A.A., the defendant made mildly offensive comments to the plaintiff on three occasions and touched her hair twice. This misconduct was not pervasive enough to constitute an unlawful hostile work environment.
VII. Indirect Victims
An indirect victim is one who is not the direct target of harassment, but who is still in the vicinity of the harassment directed to another and is affected by the harassment.
A. Where Harassing Behavior is Not Directed to Offended Employee
While it is possible to have an actionable claim for sexual harassment where harassing behavior has not been directed to the plaintiff, this is a much harder claim to prove. In cases in which the plaintiff is an indirect victim of harassment, the plaintiff must prove that the sexual conduct permeated his or her direct work environment.
To prove that indirect harassment permeated the workplace, the plaintiff generally must show that he or she personally witnessed the harassment which was directed at others, and that the harassment took place within the plaintiff’s immediate work environment. The California Supreme Court in the Friends case (Lyle) explained:
Generally … sexual conduct that involves or is aimed at persons other than the plaintiff is considered less offensive and severe than conduct that is directed at the plaintiff.… A hostile work environment sexual harassment claim by a plaintiff who was not personally subjected to offensive remarks requires “an even higher showing” than a claim by one who had been sexually harassed without suffering tangible job detriment: such a plaintiff must establish that the sexually harassing conduct permeated [her] direct work environment.
B. Favoritism in the Workplace Can Constitute Unlawful Hostile Work Environment Sexual Harassment of Non-Participating Coworkers
In Miller v. Dept of Corrections, the California Supreme Court ruled by unanimous decision that employees, under certain circumstances, may have a claim for unlawful hostile work environment sexual harassment when a supervisor shows favoritism to his or her coworkers with whom the supervisor is involved in a sexual or romantic relationship.
In Miller, two former employees of the Valley State Prison for Women sued the California Department of Corrections for sexual harassment, complaining about the conduct of the warden. The warden had sexual relationships with at least three female employees. The plaintiffs were not sexually involved with the warden, but claimed that the warden granted unwarranted and unfair employment benefits to the three women because of their sexual affairs with him.
Although this case expanded the scope of hostile work environment claims, the court stated that “mere office gossip” or an “isolated instance of favoritism” by a supervisor toward a subordinate employee he or she is having a consensual sexual relationship with will not constitute unlawful sexual harassment of other coworkers in the office.
The Court notes that where:
such sexual favoritism in a workplace is sufficiently widespread it may create an actionable hostile work environment in which the demeaning message is conveyed to female employees that they are viewed by management as ‘sexual playthings’ or that the way required for women to get ahead in the workplace is by engaging in sexual conduct with their supervisors or the management.
It is also important to note that not everyone complaining of an office romance will be able to have a viable hostile environment sexual harassment suit. In Miller, the court took into consideration admission by the participants about their sexual relationships with the warden, boasting about preferential treatment, incidents of the warden fondling the participants at work-related social events, promotion of the participants even though they were not qualified, and the warden’s own admission that he could not control the participants’ behavior at work due to his relationship with them.
VIII. Same-Sex Harassment
A. Harasser Same Sex as Victim
An employee is entitled to make a claim of sex discrimination, including a claim of sexual harassment, even if the offender is of the same sex, so long as all the elements of the cause of action are established.
It is not necessary for the same-sex harasser to be a homosexual for the victim to have a viable claim. What is necessary is that the victim be harassed in a sex or gender-specific way, or that the victim be treated differently at work because of his or her sex.
Same-sex harassment can be “because of sex” if the harassment attacks the sexual identity of the plaintiff. For example, in Singleton v. United States Gypsum Co., it was considered sexual harassment when male coworkers attacked the male plaintiff’s identity as a straight man.
CASE IN POINT: Same-Sex Harassment
In the 1998 United States Supreme Court case of Oncale v. Sundowner Offshore Services, Inc., the plaintiff, Mr. Oncale, worked on an oil platform in the Gulf of Mexico. Oncale sued for sexual harassment based on the misconduct of two supervisors and one coworker, who were also male. On several occasions, Oncale was forcibly subjected to sex-related, humiliating actions against him by the defendants, in the presence of the rest of the crew. Two of the defendants physically assaulted Oncale in a sexual manner, and one threatened to rape him. Oncale complained to supervisory personnel, but no action was taken. Oncale eventually quit. He stated, “I felt that if I didn’t leave my job, that I would be raped or forced to have sex.”
The United States Supreme Court ruled that Title VII’s prohibition of discrimination “because of sex” protects men as well as women, and that nothing in Title VII bars a claim of discrimination “because of sex” merely because the plaintiff and the defendant (or the person being charged with acting on behalf of the defendant) are of the same sex. As discussed above in Lyle, all of the surrounding circumstances must be taken into consideration in determining whether the conduct involved in the case rose to the level of creating an unlawful hostile work environment. The Oncale court states:
In same-sex (as in all) harassment cases, that inquiry requires careful consideration of the social context in which particular behavior occurs and is experienced by its target. A professional football player’s working environment is not severely or pervasively abusive, for example, if the coach smacks him on the buttocks as he heads onto the field—even if the same behavior would reasonably be experienced as abusive by the coach’s secretary (male or female) back at the office. The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed.
The legal requirements for quid pro quo sexual harassment are relatively straightforward. The law prohibits employees being subject to unwanted sexual advances or behavior as a condition for the employee receiving benefits or for avoiding adverse employment action. The more complicated legal requirements are in the area of hostile work environment sexual harassment. The courts have struggled with trying to define what is a sufficiently severe hostile work environment. The California Supreme Court suggests in the Friends case (Lyle) that in order to be sufficiently severe for a claim, a single incident of sexual harassment must involve a sexually offensive touching or a threat of offensive physical conduct. As far as the more common hostile work environment that is based on day to day offensive behaviors, the legal requirement is that the victim is obligated to present facts from which a reasonable person can find the conduct permeated the workplace and was pervasive and destructive. The Cases In Point illustrate how difficult it is to describe the rule for what constitutes a hostile work environment, but there are many examples from which a victim may find a parallel to his or her experience in the workplace.