Most will agree, sexual harassment is a serious issue calling for immediate attention. However, very often sexual harassment is overlooked and sometimes even disregarded as harmless and acceptable workplace banter between employees.

The California Government Code has codified the public policy against sexual harassment. "It is an unlawful employment practice...for any employer...because of sex to harass an employee..." Govt. Code §12940. "Employer" includes any person regularly employing one or more persons and any agents and/or employees of that employer. Sexual harassment consists of two theories of liability: Hostile Work Environment and Quid Pro Quo.

Employee has just been hired by an office in California which employs 3-5 individuals at any given time. Although the job gets done and business is flourishing, the work atmosphere is quite loose and friendly. Employee's co-workers engage in daily banter and horseplay. They discuss their sexual escapades in Employee's presence and inquire about Employee's sexual practices. Employee witnesses co-workers provocatively grab each other's buttocks. However, at no time has Employee been touched. The office has an inter-office email system. Employee regularly receives email from co-workers consisting of jokes and pictures which are sexual in nature. Employee has even observed co-workers peruse pornographic websites on their computers, download pictures and post them nearby their desks. The co-workers' actions have gone on for several months and make Employee feel quite uncomfortable and offended. Because the conduct occurs on a daily basis, it has begun to affect Employee's work performance. Employee is reluctant to express Employee's feelings for fear of being chastised or even losing the job.

Sound familiar?

Is Employee being sexually harassed? The answer very likely is "yes." Hostile Work Environment sexual harassment occurs when an employee is subjected to unwanted sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature which is sufficiently severe or pervasive to alter the conditions of the work environment so as to create an environment that is abusive and hostile. There is no requirement an employee must specifically be sexually solicited. Easton v. Crossland Mortg. Corp., (C.D. Cal. 1995.) 905 F.Supp. 1368.

The facts state Employee has been hired by a California employer which regularly employs more than one employee, making relevant law applicable. The facts state Employee is uncomfortable with the co-workers' form of sexual banter and horseplay and it has begun to affect Employee's work performance. Each of the particulars described above is based on sex; the jokes, the email, the websites and the manner in which they touch each other. Although it appears the co-workers are not intentionally offending or harassing Employee, they are in fact creating an unlawful and hostile work environment for Employee. Does the fact Employee has not been touched preclude her from raising a sexual harassment claim? No. In fact, recent case law has confirmed Employee does not even have to be the recipient of any remarks or email, so long as Employee merely witnesses the acts directed at other willing or unwilling participants and the acts are severe and pervasive. It appears Employee has become an unintentional victim of sexual harassment. Of import, the gender of Employee and the co-workers is of no legal relevance.

Does Employee have a viable lawsuit against Employer? The answer is "it depends." When the harassing conduct is being committed by co-workers, not supervisors, the employer must have reasonable notice of the unlawful conduct. The facts do not state any supervisor or manager has witnessed the conduct. The facts further state Employee is reluctant to report the conduct for fear of adverse consequence. Notwithstanding, Employee must report the conduct and avail herself of any internal procedures maintained by Employer for reporting sexual harassment. If Employee fails to do so, Employee's claims against Employer may fail.

Employee A and Employee B are hired by Employer and are instructed to directly report to Supervisor. Almost immediately, Supervisor beings to make sexual advances toward both Employees and states, "if you keep me happy, you will do well in the company." Employee A is offended by the conduct and continually rejects Supervisor's advances. Employee B is genuinely flattered by the conduct and develops an interest in Supervisor. Employee B and Supervisor begin a mutual relationship lasting several months. During the relationship, Employee B is given great reviews and salary increases, despite less than average work performance. Employee A is given negative reviews and passed over for salary increases, despite outstanding work performance. Ultimately Supervisor ends the relationship with Employee B, leaving Employee B quite upset. Both employees file sexual harassment lawsuits against Employer.

Sound familiar?

Does Employee A have a prima facie claim of sexual harassment? Very likely. Quid Pro Quo sexual harassment can be established when employment or continued employment is conditioned upon submission to unwelcome sexual advances. Doe v. Capitol Cities (App.2 Dist.1996) 50 CA4th 1038. Employee A clearly found Supervisor's advances unwelcome. Despite Employee A's rejection of Supervisor's advances, Supervisor continued to make them. It appears that because Employee A rejected Supervisor, Employee A suffered unwarranted negative reviews and was passed over for salary increases.

Does Employee B have a prima facie claim of sexual harassment? Not likely. The facts do not state Employee B found Supervisor's conduct unwelcome. In fact, Employee B expressed a mutual interest in Supervisor. As a result, Employee B willingly engaged in a romantic relationship with Supervisor and appears to have received the benefits of that relationship consequentially.

The above illustrations are intended to provide an applied understanding of sexual harassment. The law in this area is very extensive and complex. If you believe you have been sexually harassed or discriminated against on the job, you should consult a qualified attorney.

Robert D. Coviello has maintained a private practice in Orange County for over 21 years. His firm accepts cases involving wage & hour, wrongful termination, and all types of unlawful harassment & discrimination. He is a frequent speaker at seminars designed to educate employers and their counsel on employment matters. Recent topics include: Avoiding & Defending Discrimination Charges, Investigating the Sexual Harassment Complaint, and Mis-Classification of Employees. Among other things, Mr. Coviello sits as Chair of the Labor & Employment Law Section of the State and Orange County Bars, is a member of the National Employment Lawyers Association and serves as a Neutral on the Employment Panel of the American Arbitration Association. Perla J. Duvel is an Associate Attorney with Mr. Coviello's firm. She is a member of the Labor & Employment Law Section of the Orange County Bar and has handled a variety of wage & hour, sexual harassment, wrongful termination and employment discrimination claims. Ms. Duvel frequently investigates these matters and has spoken at seminars on the issues of Investigating Employee Sexual Harassment Claims and Conducting Job Interviews without Violating Law.