Sexual Harassment

``Hostile work environment'' harassment occurs when unwelcome sexual conduct has the purpose or effect of unreasonably interfering with an employee's work performance or creating an intimidating, hostile, or offensive working environment . Harassment must be sufficiently severe or pervasive to alter the conditions of the plaintiffs employment and create an abusive environment. A prima facie case of environmental sexual harassment is established if the plaintiff establishes the following: (1) he or she was subject to unwelcome sexual harassment, (2) the harassment was based on sex, (3) the harassment was sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment, and (4) the relationship between the employer and the person or persons committing the acts of harassment is sufficient to impose liability on the employer under principles of respondent superior. The FEHC uses a similar test, which requires the prima facie showing to be made by a preponderance of all the evidence; the plaintiff must also show that the harassing conduct led to the deprivation of an employment benefit or benefits. FEHC regulations provide that a ``discrimination-free workplace'' (that is, a workplace free of harassment) is an employment benefit. Whether the sexual conduct is sufficiently severe and pervasive to constitute a hostile work environment is determined by examining the totality of the circumstances. A plaintiff may claim environmental sexual harassment even if he or she was not the object of the harassment, as long as the harassing conduct permeated his or her direct work environment. The plaintiff must establish that he or she personally witnessed harassing conduct, and that it was in his or her immediate work environment. The fact that sex-related conduct is ``voluntary,'' in the sense that a plaintiff is not forced to participate against his or her will, is not a defense. The correct inquiry is whether a plaintiff, by his or her conduct, indicated that the alleged sexual advances were unwelcome. Thus, the plaintiffs sexually provocative speech or dress is relevant in determining whether particular sexual advances were unwelcome.

``Quid pro quo'' harassment occurs when submission to sexual conduct is made a condition for receiving concrete employment benefits or for the avoiding job detriment . For example, in one Title VII case, a plaintiff was denied promotion in retaliation for her refusal to submit to sexual advances . Under the FEHA, an employee may establish a prima facie case of such retaliation by showing, by a preponderance of the evidence, a causal connection between the employee's resistance to sexual harassment and an adverse action taken against the employee by his or her employer. Under Title VII, an employee may establish a prima facie case by a showing that (1) the plaintiff was a victim of a pattern or practice of sexual harassment attributable to his or her employer; and (2) the plaintiff applied for and was denied a benefit, such as a promotion, for which he or she was technically eligible, and of which he or she had a reasonable expectation. If a prima facie case is established, the employer bears the burden of showing, by clear and convincing evidence, that it had legitimate and nondiscriminatory reasons for denying the benefit. If the employer successfully rebuts the prima facie case, the plaintiff must have the opportunity to prove that the employer's purported reasons were pretextual.

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