Workplace sexual harassment has captured the public’s attention, with high-profile accusations being made against politicians, businesspeople and actors almost daily. However, it’s not just celebrities that are getting in hot water.

The EEOC reports that more than 12,000 cases of workplace sexual harassment are reported each year.

These cases are often emotional and contentious, and they can be particularly difficult, because they put the word of one person against another. So, what qualifies as workplace sexual harassment in California?

Is It Sexual Harassment to Hug Someone at Work?

california workplace sexual harassmentDepending on the circumstances and the person’s pattern of behavior, it could be. California employment law calls out two specific types of workplace sexual harassment:

  1. Quid pro quo – When a superior at work tries to trade preferential treatment for sexual favors.
  2. Hostile work environment – When unwelcome sexual advances or comments create a detrimental effect on the work environment.

If the hug is part of a series of unwelcome advances, it could be illicit.

As well, the state is also subject to several other conditions set by a state law called the Fair Employment and Housing Act (FEHA), which sets basic definitions for sexual harassment. Its application has been refined over the years as California judges have used it to interpret workplace sexual harassment cases.

Let’s dive into these in greater detail.

Quid Pro Quo Workplace Sexual Harassment

If a supervisor or manager suggests to an employee that, if they perform a sexual service, they will gain an advantage or avoid a negative situation at work, this is quid pro quo sexual harassment.

In order to qualify as quid pro quo sexual harassment, three things must be true:

  1. The person making this request is a supervisor, manager or someone organizationally higher than the employee.
  2. The request must be unwelcome.
  3. If the employee refused to consent to this, there must be a tangible employment action that resulted from the situation.

Let’s look at a few examples:

Example 1: Mike and Nancy are coworkers, both servers at a busy restaurant. Nancy has a family emergency and must leave work early, so she asks Mike if he can cover her tables. He says yes, if she performs oral sex on him. This is not quid pro quo sexual harassment, because Mike is not Nancy’s manager. However it could be “hostile work environment” sexual harassment (see below).

Example 2: Mike is the CEO of a small business, and Cindy is his secretary. One afternoon, Mike calls Cindy into his office, where he is watching a pornographic movie. He tells Cindy to join him, because those who enjoy porn typically “make more” at his firm. This could be understood as an implied quid pro quo offer.

Example 3: Mike is self-employed and hires Kristy as a part-time employee. After working together for some time, the two begin a consensual sexual relationship. Mike promotes Kristy to a VP role in his business. Mike breaks up with Kristy, but she continues as a VP. This is not quid pro quo sexual harassment, because the relationship was consensual.

In other words, consensual workplace relationships do not qualify as quid pro quo sexual harassment, nor do situations where the supervisor does not follow through on their threat, and nor do situations where the person making the request isn’t a superior.

Instead, Example 2 and Example 3 might qualify as hostile work environment cases.

Hostile Work Environment Sexual Harassment

california workplace sexual harassmentWhile the requirements around quid pro quo sexual harassment are strict, the definition of a hostile work environment is rather broad.

In order to prove a hostile work environment claim, the employee must prove:

  1. The harassment is based on his/her sex.
  2. The employee was the recipient of unwelcome advances, conduct or comments.
  3. The harassment was severe and pervasive enough to create a hostile work environment.

The behavior has to be severe or pervasive, and it doesn’t necessarily have to be both. It also does not need to be based on attraction or desire — simply harassing behavior around sex.

It is not hostile workplace sexual harassment if the behavior is:

  • Sporadic
  • Trivial
  • Isolated
  • Or Occasional

Let’s look at a few examples:

Example 1: Mike and Cindy are coworkers at a real estate firm. Mike asks Cindy on a date, and she declines. He does not make any further overtures to a relationship with her. This would likely not be hostile work environment workplace sexual harassment.

Example 2: Mike is a manager at an accounting firm, and Cindy is his employee. Mike regularly makes disparaging remarks around Cindy about the ability of women to do the requirements of the job. Because this is a sex-based, unwelcome and pervasive, it could be hostile work environment sexual harassment.

Example 3: Mike and Cindy are both managers at a marketing firm. One night, as both are working late, Mike forces Cindy against a wall and tries to kiss her, resulting in a bruise. This is severe enough to qualify as a hostile work environment.

The two previous sections described ways under California law that workplace sexual harassment can happen through quid pro quo demands and hostile work environments created by workplace behavior.

This covers a small fraction of valid workplace sexual harassment claims that can be made in the State of California. Let’s look at some other examples.

Other Illicit Forms of Workplace Sexual Harassment

Sexual Favoritism

While sexual advances from a supervisor to an employee that are welcome aren’t sexual harassment, other employees in the workplace could file a valid sexual harassment claim if:

  • A supervisor engages in sexual relationships with employees, and
  • Those employees receive favorable treatment.

Sexual Harassment Between Coworkers

While quid pro quo sexual harassment requires that one party be a manager and one be an employee, unwelcome sexual advances between coworkers can qualify as a hostile work environment.

Sexual Harassment From or Towards Non-Employees

Freelancers, contractors, interns, volunteers and even customers are subject to the same sexual harassment regulations under California Law, and they have the same rights as full-time employees.

Penalties for Workplace Sexual Harassment

If the workplace sexual harassment is verbal only, then it is a tort. It is the responsibility of the person who feels they were harassed to sue the person they feel harassed them for damages. It is also possible to sue the employer for negligence in this case.

If there was lewd touching involved, then this could also be a case of sexual battery. Under California law, sexual battery occurs when:

  1. The defendant touches a person’s intimate parts (breasts, buttocks, groin) while the person was restrained by the defendant or another person.
  2. The touching was against the person’s will.
  3. The touching was done for the purposes of sexual gratification.

Sexual battery is a “wobbler” in California law, meaning that it can be tried as either a misdemeanor or felony. As a misdemeanor, the maximum punishment is 6 months in county jail and a $2,000 fine — which rises to $3,000 if the defendant was the victim’s employer.

As a felony, this can be punished with a prison sentence up to 4 years and a fine of $10,000. All convictions require registration as a sex offender.

Defending Against Sexual Battery Charges

If you have been accused of sexual battery, it is important to begin building your defense as soon as possible. Allegations of sexual assault can have serious ramifications on your personal and professional life.

Even as a misdemeanor, a sexual battery conviction requires registration as a sex offender, which can make it difficult to find work, housing and more.

Your freedom depends on your defense. As a 30-year veteran of criminal defense in the Los Angeles area, I’m prepared to take on any charges of sexual battery. Call today for your free consultation: 310-456-3317.