Federal and California protections against workplace sexual harassment

Two kinds of sexual harassment exist, one involving sexual favors and another sexually charged work environments.

Californians are protected by strong anti-discrimination laws - both federal and state - against sexual harassment in the workplace as a kind of illegal sex discrimination, including that based on gender or on pregnancy. These laws provide legal remedies through a complex interplay of federal and state agencies and courts that involve strict procedural requirements, including those involving notice, filing and deadlines.

Federal and California laws that forbid sexual harassment of job applicants and employees, while extremely similar, apply to employers of different sizes and may provide different legal remedies, so it can be crucial to consult an experienced employment attorney who can explain the differences, listen to the facts of your case and provide advice about the legal options available.

The substance of federal and California sexual harassment laws are extremely similar. Both forbid two types of sexual harassment: quid pro quo and hostile work environment. Harassment can be inflicted by a person of either gender and against a person of the same or opposite sex. Harassers can be supervisors, co-workers or other people in the workplace like clients or contractors.

Quid pro quo - literally, this for that - sexual harassment essentially describes the scenario where an employer requests a sexual favor in exchange for employment benefit, or to prevent negative employment action. For example, a sexual favor could be requested as a condition of hiring or of promotion, or to prevent being fired or demoted.

Hostile work environment sexual harassment occurs when behavior at work of a sexual nature unreasonably interferes with another person's work performance or creates a work environment that is hostile, intimidating or offensive. Examples of behavior that can contribute to a hostile environment include:

  • Unwelcome sexual touch, including assault
  • Intimidating blocking or close occupation of the physical space around a person
  • Offensive or explicit electronic or print pictures
  • Stalking behavior like repeatedly asking for dates or to meet outside of work
  • Off-color written messages, electronic or otherwise
  • Crude humor or offensive comments about another person's body or about a gender in general
  • Display of sexual gestures or objects
  • Leering

Sexual harassment is highly factually specific to the individual circumstances.

To create an illegal hostile environment, the behavior must either be severe or pervasive. In other words, normally one sexual assault would be enough, but one off-color joke would not. Crude humor on a daily basis, however, would probably be enough.

An employer (duties vary by number of employees) has legal duties to protect against sexual harassment, to provide information and training, to set up a complaint procedure, to investigate complaints and take action to stop harassment, and not to retaliate against someone for complaining, reporting or cooperating in an investigation or legal claim.

San Francisco lawyer Daniel Feder of The Law Offices of Daniel Feder represents employees in sexual harassment matters as well as in other kinds of illegal employment discrimination throughout the Bay Area.