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.1

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.2 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.

Categories of Sexual Harassment

The courts and government enforcement agencies define two broad categories of sexual harassment, quid pro quo and hostile environment. Understanding the differences between the categories is important because each category creates different liability for employers.

Quid Pro Quo Sexual Harassment

Quid pro quo (literally, “this for that”) is the more easily recognized type of sexual harassment defined by the courts. Quid pro quo sexual harassment typically occurs when a person who has the power to influence an employment decision or condition seeks a sexual favor in return for a positive employment outcome. The common example is when a supervisor demands that an employee consent to some form of sexual behavior to receive a promotion or to continue employment.

Quid pro quo harassment occurs when “submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual ...” It can involve either explicit or implicit conditioning of a job or promotion on the sexual advances.3

Hostile Environment Sexual Harassment

Sexual harassment can also create hostile work environments, the claims for which follow the same rules and principles described in the sections above. These claims are sometimes more subtle and difficult to recognize than quid pro quo sexual harassment. Hostile environment sexual harassment often occurs when unwelcome sexual jokes, suggestive remarks, cartoons, physical interference with movement (such as blocking a person or following a person), sexually derogatory comments or other conduct based on sex unreasonably interferes with an employee’s work performance or creates an intimidating, hostile or offensive working environment. The conduct must be severe or pervasive such that it alters the victim’s employment and creates an abusive working environment.4

Sexual Favoritism

Extensive sexual favoritism in a workplace can create a hostile work environment in which female employees can reasonably conclude that management views them as “sexual playthings” or that women must engage in sexual conduct with their supervisors to receive favorable treatment.5

Example: Two female employees at a prison claimed that the warden engaged in sexual affairs with several female employees. The plaintiffs alleged that these employees received promotions, favorable assignments and other rewards. They sued for sexual harassment and retaliation under FEHA. The trial court and the Court of Appeal rejected their claims because the same disadvantages were experienced by all employees, male or female, who were not sexually involved with the warden. Moreover, the warden did not engage in improper sexual conduct toward either of complaining employees. The California Supreme Court disagreed and found that the widespread sexual favoritism could give rise to a lawsuit.

Also, remember that under California law an employer can be liable for sexual harassment even if the offensive conduct was not directed at the person alleging harassment.6

1. 2 CCR sec. 11034(f)