Stated in that broad statement are various components of the law. First the conduct must be “unwelcome.” The law does not prohibit sexually related conduct between consenting adults. Problem is, “welcomeness” is relative. In the workplace, what may be “welcomed” initially can become unwelcome later. It’s important for supervisors, managers and owners to know that the receipient, not the alleged harasser, defines "welcomeness." Additionally, sexual harassment can take place between members of the same sex and by a woman against a man. 

There is a form of unlawful harassment called “quid pro quo” (Latin for “what for what” or “something for something”). You give me sex, and I give you a raise is quid pro quo harassment. If there is quid pro quo harassment by any supervisor, there will be liability. Period.

The other form of unlawful harassment is called “hostile work environment harassment.” This is where the alleged harassing conduct rises to the level of “severe or pervasive” conduct. This conduct must make the recipient’s work environment “hostile.”

Whether or not the working environment is "hostile" is measured by how "a reasonable person in the plaintiff's position, considering all the circumsntaces," would feel. Oncale v. Sundowner Offshore Services, Inc. (1998) 523 US 775, 81. California and the Ninth Circuit apply a standard of the "reasonable victim" or, in the case of sexual harassment of a woman, the "reasonable woman." At trial, the jury decides whether the conduct is so severe or pervasive to be "hostile."

As a business owner, your best defense to unlawful harassment claims are all preventive: have a harassment policy in your employee handbook or a stand alone policy, set the tone that unlawful harassment of any kind is unacceptable, train employees, especially your supervisors, on the policy, encourage reporting of violations, immediately investigate all claims, and take immediate and appropriate corrective action, including termination if violation of the policy is sufficiently egregious.

Unlawful harassment is not just “sex harassment.” It includes harassment based on race, religious creed, color, national origin, ancestry, mental or physical disability and age. Under your state’s law it could also include medical condition, marital status, pregnancy, childbirth or related medical conditions, sexual orientation and other protected classes.

(Reviewed 9-08)