There are new sexual harassment provisions of the California Fair Employment and Housing Act as California takes the lead on #MeToo legislation.
The old sexual harassment law in California was based on Brooks v. City of San Mateo, wherein the Court considered “the legal implications of a single, rather unsavory, episode of workplace sexual harassment.”
In that case, a co-worker of the victim “forced his hand underneath her sweater and bra to fondle her bare breast” after being forcefully pushed away to stop his harassing conduct.
The Ninth Circuit panel ruled that even though the supervisor had allegedly placed his hand underneath a subordinate’s blouse and cupped her breast, it was just one instance of sexual harassment. The Court’s opinion was that it did not amount to “severe or pervasive” sexual harassment to trigger liability.
That opinion promoted a lot of controversy because groping someone’s breast in the workplace is obviously outlandish conduct and should never be tolerated. But defendants in Brooks v. City of San Mateoargued that even if you had a really horrendous, single incident, the courts could not attach liability because it was just one incident – even if it was one horrific incident.That was the old law and it was bad law.
Thankfully, the governor and legislature have clarified that California law does not allow harassers “one free grope” anymore. As described in Senate Bill 1300
“[a] single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment if the harassing conduct has unreasonably interfered with the plaintiff’s work performance or created an intimidating, hostile, or offensive working environment.”
What Qualifies as Sexual Harassment in California?
The standard for sexual harassment is conduct that is “severe or pervasive,” affecting the terms and conditions of work so that the environment is hostile to a reasonable person. There is often some confusion, or at least some argument, between plaintiffs and defendants in these cases, about whether the standard is severe or pervasive versus severe and pervasive.
However, the actual standard is that severe or pervasive meaning that, even with one instance of extreme or egregious act can constitute harassment. The California legislature has now made this interpretation of the law explicit in the law.
In addition to it being severe or pervasive, you have to show that a reasonable person in the same situation as the victim, would find that the misconduct amounted to a hostile environment in the workplace.
If it’s pervasive, it does not have to be severe.
For example, there are cases of excessive looking: where someone has looked at a woman up and down, stared at a woman from behind, or just sneaked peeks at her. Even if any of those incidents aren’t severe, but are a regular occurrence in the workplace, it has the likely effect to a reasonable person that the work environment is hostile and therefore, trigger liability, even if the conduct in question is not a sexual assault like in the Brooks v. City of San Mateo case.
It doesn’t have to involve actual touching or involve requests for sexual favors or dates, but just any sexualized conduct that by frequency or extreme nature, would make a reasonable person uncomfortable.