Sexual harassment in the workplace; actions brought under FEHA

2023 March

The most common forms of sexual harassment in an employment setting unfolds in two forms: (1) quid pro quo harassment (“something for something”) and (2) hostile work environment harassment.

Quid pro quo happens when an employee feels pressured to engage in a sexual act in exchange for some form of preferential treatment. Usually, a victim is promised or given a promotion, job security or other employee benefits. Essentially, quid pro quo harassment occurs when submission to sexual conduct is made a condition of concrete employment benefits. (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 607).

To meet the elements of quid pro quo, a plaintiff must prove that: (1) the plaintiff was an employee, applied for a job/was a person providing services pursuant to a contract with defendant; (2) the alleged harasser made unwanted sexual advances to the plaintiff or engaged in other unwanted verbal or physical conduct of a sexual nature; (3) the terms of employment, job benefits, or favorable working conditions were contingent, by words or conduct, on the plaintiff’s acceptance of the alleged harasser’s sexual advances or conduct; (4) the alleged harasser, at the time of the harassment was a supervisor or agent for the defendant; (5) the plaintiff was harmed; and (6) the alleged harasser’s conduct was a substantial factor in causing the plaintiff’s harm. (CACI 2520.)

A hostile work environment is created when the harassment at work negatively impacts the victim’s work environment. This typically comes in the form of sexual advances, jokes, unwelcome comments that cause the victim to feel intimidated, embarrassed, or threatened.

Establishing a valid claim

To establish a valid claim that the harassment created a work environment that was hostile, intimidating, offensive, oppressive, or abusive, a plaintiff must show that: (1) the plaintiff was an employee, applicant for a position, a person providing services under contract or an unpaid intern/volunteer; (2) the plaintiff was subjected to the harassing conduct because he or she was part of a protected class; (3) the harassing conduct was severe or pervasive; (4) a reasonable person in the plaintiff’s circumstances would have considered the work environment to be hostile, intimidating, offensive, oppressive, or abusive; (5) the plaintiff considered the work environment to be hostile, intimidating, offensive, oppressive, or abusive; (6) a supervisor engaged in this conduct or that the defendant knew or should have known of the conduct and failed to take immediate and appropriate corrective action; (7) the plaintiff was harmed; and (8) that the conduct was a substantial factor in causing the plaintiff’s harm. (CACI 2521A.)

Typically, the most contested elements are whether the conduct was severe or pervasive and whether a reasonable person would consider this conduct to be intimidating, offensive, oppressive, or abusive.

The severe-or-pervasive standard

An employee claiming sexual harassment based upon a hostile work environment must demonstrate the conduct complained of was severe enough or sufficiently pervasive to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees because of their sex. The working environment must be evaluated in light of the totality of the circumstances: ‘[W]hether an environment is “hostile” or “abusive” can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.’” (Miller v. Dept. of Corrections, (2005) 36 Cal.4th 446, 462.)

For sexual harassment to be actionable, “it must sufficiently severe or pervasive ‘to alter the conditions of [the victim’s] employment and create an abusive working environment.” (Aguilar v. Avis Rent a Car System, Inc. (1999) 21 Cal.4th 121, 129-130.)

Typically, in examining the severe or pervasive standards, courts look to whether objectively there was a hostile or abusive work environment. Factors that can be considered when evaluating whether the conduct complained of is sufficiently pervasive to create a hostile or offensive work environment are: (1) the nature of the unwelcome sexual acts or works (generally, physical touching, is more offensive than unwelcome verbal abuse); (2) the frequency of the offensive encounters; (3) the total number of days over which all of the offensive conduct occurs; and (4) the context in which the sexually harassing conduct occurred.

Unwelcome conduct

Conduct is unwelcome if the recipient did not initiate it and regards it as offensive. Conduct can be verbal or physical, including intimidation, ridicule, insult, comments, or physical conduct that is based on an individual’s protected status.

“Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment – an environment that a reasonable person would find hostile or abusive – is beyond Title VII’s purview. California courts have adopted the same standard in evaluating claims under the FEHA.” (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 129-130.) As such, to be actionable, the conduct needs to be both objectively and subjectively offensive (conduct that a victim perceives as abusive and that a reasonable person would also find offensive).

Employer’s liability for a supervisor’s harassment

Whether an employee has supervisory status is a critical issue in sexual-harassment cases. Employers are strictly liable for the actions of their supervisors, managers, or agents under the doctrine of respondeat superior, even if the employer did not condone or have any knowledge of the harassment.

Under the FEHA, a supervisor is defined as an individual with authority on behalf of an employer to “hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees” or to direct employees, resolve employee grievances, or to recommend such action, provided that the employee’s exercise of authority “requires the use of independent judgment.” However, some courts have found that a lead employee may be a supervisor in determining liability for sexual harassment under FEHA. (Almanza v. Wal-Mart Stores, Inc., No. 06-0553 (E.D. Cal., Aug. 7, 2007).)

In Almanza, the court denied the employer’s motion for summary judgment, ruling that the plaintiff could proceed to trial on her claims that the employer was strictly liable for alleged sexual harassment by a lead employee. Although the lead had no authority to hire, fire, discipline, or transfer employees, factual disputes existed regarding his authority to direct employees and his influence on employment decisions.

The definition under FEHA which includes the definition of “supervisor” that specifically references “responsibility to direct” other employees lead us to the conclusion that a “lead” or “foreman” that may not have authority to fire or hire, but is given the responsibility to direct the work of other employees, may be considered a “supervisor” under California law.

File a complaint with the appropriate state agency or federal agency

The U.S. Equal Employment Opportunity Commission (“EEOC”) is the federal agency responsible for enforcing the FEHA laws.  The EEOC has the authority to investigate charges of discrimination against employers. The California Civil Rights Department (“CCRD”), previously known as the Department of Fair Employment and Housing (“DFEH”), is a state agency that can investigate the allegations.

Employees can also decline an investigation and immediately obtain a right-to-sue letter from the CCRD instead of having the CCRD investigate. Once the right-to-sue letter is obtained, the employee can file a lawsuit against their employer. It is important to note that the statute of limitations to obtain a right-to-sue letter is three years from the last date of the harassment, and once a right-to-sue letter is obtained, the employee has one year to file a lawsuit.

Early, effective discovery for your case

In FEHA cases, the scope of discovery in sexual-harassment cases centers on the facts regarding the alleged unlawful discrimination, harassment, or retaliation of the plaintiff. Doing discovery pre-litigation is a great opportunity to gather information and talk to witnesses before the defendant/employer knows that your client is considering filing or has retained an attorney. Take advantage of this time and try to obtain as much documentation from your client as possible and speak to potential witnesses.

Early discovery into your case will allow you to understand the facts and challenges you will face in litigation. Your client is your primary source; thus, it is important to go over the facts several times and create a timeline of events (i.e., when your client complained, how the employer responded and any witnesses who saw or heard any of the harassment). Creating a solid timeline, talking to witnesses, and outlining which characters will be helpful or harmful early in the case will set you up for success when discovery commences in litigation.

In discovery, the type of information you should be seeking from the employer should include: (1) your client’s personnel file, including any contract agreements, arbitration agreements, performance reviews, performance improvement plans, attendance records, and any disciplinary documents; (2) wage and salary information, including benefits and bonus; (3) any awards or recognition given, including promotions; (4) notes, emails or other documents authored by employees, supervisors or co-workers; and (5) employee and/or company handbooks and company policies.

In cases involving the sexual harassment from another employee, you can also request the harasser’s personnel file at the current and previous places of employment to determine if anyone else has lodged complaints against the harassing employee.

Conclusion – complex, difficult cases

Sexual-harassment cases can be complex because you are dealing with victims of traumatizing situations. Often, a plaintiff has been to therapy to deal with past and present trauma, which are records that defense often seeks and you must determine what you will allow defense to have and what you will have to fight them on.

Working with victims of abuse presents more challenges in getting through litigation, including dealing with adversarial depositions that require recounting the harassment and retaliation they faced in the workplace.