Sexual Harassment in the Workplace

Under the California Fair Employment and Housing Act (FEHA), it is illegal to sexually harass another employee in the workplace. Sexual harassment is forbidden under FEHA and Government Code section 12940. FEHA law is administered by the California Fair Employment and Housing Commission (FEHC). The FEHC considers sexual harassment to include verbal, physical, and visual harassment. Sexual harassment protections encompass both professional relationships and independent contractors.

Sexual harassment may occur in a professional relationship in which the client or customer is sexually harassed. These relationships covered by FEHA include: doctor/patient, attorney/client, landlord/tenant, teacher/student, and many other similar relationships. An independent contractor is described as any “person providing services pursuant to a contract.” Under FEHA, it is illegal to sexually harass an independent contractor. It is also illegal to harass on the basis of that person’s gender, race, religious views, marital status, sexual orientation, etc.

An unwanted sexual advance from a coworker of the same sex is also considered sexual harassment under FEHA. A California court of appeal determined that sexual harassment includes unwanted advances regardless of the gender or sexual orientation of the victim or the harasser. This was decided in Mogilefsky v. Superior Court. A California court of appeal did, however, decide that the use of vulgar language that is not motivated by sexual interest does not amount to same-sex harassment.

If there is special treatment resulting from a consensual romantic relationship, then it is not typically considered sexual harassment. A California court did not acknowledge a claim for sexual harassment in which a romantic relationship between a supervisor and a secondary employee resulted in the special treatment of the secondary employee. Therefore, the law does not forbid special treatment based on consensual romantic relationships. The court did come to suggest, however, that there may be grounds for a lawsuit if a romantic involvement with a manager will lead an employee to work-related benefits. Furthermore, there could be grounds for a lawsuit if an affair involving a manager and an employee creates a hostile and uncomfortable work environment.

In a California Supreme Court case, there were two female employees at a prison who claimed that the warden had initiated sexual affairs with several other female employees. The employees involved in the affairs were alleged to receive rewards, promotions, and favorable tasks as a result of their romantic relationships. The Court decided that the extensive sexual favoritism in this workplace created a hostile work environment because the female employees were led to believe that sexual conduct with their supervisor would result in favorable treatment or discrimination in the workplace.