Unfortunately, sexual harassment is still common in the workplace. Sexual harassment can take many forms,including physical, verbal, non-verbal, written or visual. It can include “hostile work environment” sexual harassment, such as inappropriate or unwanted touching, exposing one’s private parts, sexual comments or jokes, comments about a person’s appearance or clothing, looking someone’s body up and down, watching or sharing pornography, sending lewd emails or texts, requesting sexual favors, and making unwanted advances, just to name a few examples. It can also include “quid pro quo” harassment where job benefits or continued employment is conditioned upon the provision of sexual favors. Sexual harassment can cause the victim to experience tremendous humiliation, depression and anxiety. Victims often feel helpless and are reluctant to report the harassment because of embarrassment, shame, fear of being ridiculed or not believed, and fear of retaliation. Fortunately, sexual harassment in employment is illegal in all states and under federal law. In California, the Fair Employment and Housing Act (“FEHA”) makes it an unlawful employment practice to sexually harass an employee. FEHA also provides that an employer may be held liable for the harassment by a co-worker, or even by a non-employee (such as a vendor or customer), if the employer knew or should have known about the harassment and failed to take immediate and corrective action. FEHA also provides that employers are strictly liable for sexual harassment done by a supervisor regardless whether the employer knew or should have known about it.
Harassment is not just limited to sexual harassment. It is illegal for an employer or individual to harass an employee based on race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military or veteran status. California Government Code Section 12940(j)(1).
More employees are covered by the anti-harassment law than other FEHA provisions. For all other causes of action under FEHA, such as causes of action for discrimination and retaliation, the term “employer” refers to anyone who regularly employs five or more people. However, for harassment causes of action only, the term “employer” refers to any person regularly employing one or more persons. California Government Code section 12940(j)(4)(A).