What is sexual harassment?
The UC Policy on Sexual Harassment contains a definition of sexual harassment. Faculty, staff and students are urged to review the Policy itself to understand the different types of sexual harassment. Generally, sexual harassment is unwelcome sexual behavior, requests for sexual favors, and other verbal or physical conduct of a sexual nature, when submission to or rejection of this conduct explicitly or implicitly affects a person’s employment or education; or which unreasonably interferes with an individual’s work or educational performance, or creates an intimidating hostile or offensive working or learning environment.
Sexual harassment can take many forms. It may be vulgar or lewd comments, or forcing workers to wear sexually revealing uniforms. It can involve unwanted physical touching or fondling, or suggestions or requests to engage in sexual conduct. Obscene or sexually suggestive cartoons and posters can be sexual harassment. Off-color jokes or repeated sexual references can be sexual harassment. It depends on the circumstances. Courts consider the nature and frequency of the conduct as well as the conditions under which the conduct occurred. Courts also consider whether the plaintiff complained about the conduct, or could be considered to have condoned it by his or her conduct.
The California Supreme Court has cited with approval the federal EEOC’s definition of sexual harassment as “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that has the ‘purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.” (Lyle v. Warner Bros. Television Productions (2006) 38 Cal.4th 264, 278.
Sexual harassment is either establishing terms and conditions of employment that require sexual favors (called quid pro quo sexual harassment), or creating, maintaining, or tolerating a sexually hostile work environment. Just how hostile, offensive, or abusive the environment must be to support a cause of action is still a matter of legal dispute and controversy. Typically for conduct to be actionable under state or federal law for creating an abusive work environment, it need not be so severe as to cause a plaintiff-employee to suffer psychological injury. According to the U.S. Supreme Court, This standard takes a middle path between making actionable any conduct that is merely offensive and requiring the conduct to cause a tangible psychological injury.
