At Palay Law Firm we receive numerous inquiries from employees wanting to know – What is sexual harassment?
Sexual harassment in the workplace can take one of two forms:
“Quid Pro Quo” Sexual Harassment
This type of sexual harassment gets its name from the Latin phrase which loosely translates to “a favor for a favor” and embodies the concept of “you scratch my back, and I’ll scratch yours.”
Quid pro quo sexual harassment is where an employee is subjected to sexual conduct that is linked to the grant or denial of job benefits, such as getting or retaining a job, or receiving a favorable performance review or promotion. The case of Holly D. v. California Institute of Technology, 339 F.3d 1158 (9th Cir. 2003) is a good example of a very “typical” quid pro quo harassment situation. In the Holly D case, the plaintiff (a female) worked as an assistant to a university professor (a male). The plaintiff alleged that, in order to keep her job at the university, she was forced to engage in sexual relations with the professor for whom she worked.
The plaintiff was not explicitly told that she would be fired, demoted, or otherwise penalized if she refused the professor’s demands, but she believed that it was implied that her continued employment depended on her complying with the professor’s unwelcome sexual advances.
Here are some examples of sexual harassment in the “quid pro quo” category:
- Supervisor uses his authority to extort sexual consideration from an employee.
- Employee is subjected to sexual conduct which is linked to the grant or denial of job benefits.
- Getting or retaining a job, receiving a favorable performance review or promotion is conditioned upon sexual conduct.
- A significant change in employment status (such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a significant change in benefits) is tied to sexual conduct.
- Employee is subject to sexual advances to the point where he or she is forced to quit – also called a “constructive discharge.” This arises when a reasonable person in the employee’s position would have felt compelled to resign based on the sexual harassment.
“Hostile Environment” Sexual Harassment
This type of sex harassment is where sexual conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile or offensive working environment.
The case of Hall v. Gus Const. Co., Inc., 842 F.2d 1010 provides an illustration of actionable “hostile environment” sexual harassment. In Hall v. Gus Const. Co., the construction foreman hired three women to work as traffic controllers at road construction sites.
Immediately after the women started work, male members of the construction crew began to make disparaging comments, of a sexual nature, towards and in the presence of the women. The men repeatedly referred to the women in derogatory sexual terms, wrote mean-spirited comments on one of the women’s vehicle (on a window, in the dust), made sexual requests towards the women, engaged in unwelcome touching, “mooned” the women, showed them pornographic pictures, among other actions. Each of the women told their supervisor that the conduct offended and upset them, but little corrective action was taken.
The male construction workers did not condition or suggest job benefits upon sexual conduct; in fact, they could not since they were not the women’s superiors. Thus, Hall v. Gus is a “hostile environment” case and not a “quid pro quo” harassment case.
Here are some examples of sexual harassment in the “hostile environment” category:
- Physical conduct of a sexual nature: touching, grabbing, groping, rubbing up against, etc.
- Verbal abuse: derogatory comments regarding gender, sex, orientation; gender-specific insults.
- Unwelcome, sexually oriented comments about appearance, clothing or body parts. These need not be directed at the plaintiff; may simply be made in plaintiff’s presence.
- Visual displays of offensive materials: pornographic pictures, videos or other suggestive materials.
- Persistent leering in a sexual manner (e.g. staring at woman’s breasts).
- Favoring a “paramour” as harassment of other employees: Supervisor favors a subordinate with whom he or she has a romantic relationship in a manner which unreasonably makes other employees uncomfortable.
Unlike quid pro quo sexual harassment claims, a plaintiff bringing a hostile environment claim does not need to prove loss of tangible job benefits or actual injury. However, it must be shown that the employer must know, or should have known, about the harassment yet failed to do anything to correct it.
Contact Palay Law Firm Regarding Your Workplace Harassment Issue. These are just some examples of sexual harassment and case law intended to illustrate what sexual harassment is defined as under California law. Every situation is unique — if you believe you have been sexually harassed, contact Palay Law Firm today at (213) 973-3565 to speak to an attorney and discuss your rights.
