What Is Hostile Work Environment Sexual Harassment?

The Basics of Hostile Work Environment Sexual Harassment

By Navid Yadegar and Navid Soleymani, our Los Angeles employment lawyers

“There are two theories upon which sexual harassment may be alleged: quid pro quo harassment, where a term of employment is conditioned upon submission to unwelcome sexual advances; and hostile work environment, where the harassment is sufficiently pervasive so as to alter the conditions of employment and create an abusive work environment.” Holmes v. Petrovich Development Co., LLC, 191 Cal. App. 4th 1047, 1058-59 (2011). This article is written by our los angeles employment attorneys, and focuses on the nuisances of hostile work environment sexual harassment.

“To prevail on a claim of hostile work environment sexual harassment, an employee must demonstrate that he or she was subjected to sexual advances, conduct, or comments that were (1) unwelcome, (2) because of sex, and (3) sufficiently severe or pervasive to alter the conditions of his or her employment and create an abusive work environment.” Id. at 1059.

“Whether an environment is ‘hostile’ or ‘abusive’ can be determined only by looking at all the circumstances including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Id. (citations, quotations, and alterations omitted). “Therefore, to establish liability in a FEHA hostile work environment sexual harassment case, a plaintiff employee must show she was subjected to sexual advances, conduct, or comments that were severe enough or sufficiently pervasive to alter the conditions of her employment and create a hostile or abusive work environment.” Id. (citations and quotations omitted). This means that “an employee generally cannot recover for harassment that is occasional, isolated, sporadic, or trivial; rather, the employee must show a concerted pattern of harassment of a repeated, routine, or a generalized nature.” Id. (citations and quotations omitted)

“To be actionable, a sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so. That means a plaintiff who subjectively perceives the workplace as hostile or abusive will not prevail under the FEHA, if a reasonable person in the plaintiff’s position, considering all the circumstances, would not share the same perception. Likewise, a plaintiff who does not perceive the workplace as hostile or abusive will not prevail, even if it objectively is so.” Id. (citations and quotations omitted; emphasis in original).

Further, the employer is not vicariously liable for hostile environment sexual harassment created by plaintiff’s co-workers. The employer may be directly liable for a co-workers’ alleged sexual harassment, only if the employer knows of the harassment and fails to stop it. Mathieu v. Norrel Corp., 115 Cal. App. 4th 1174, 1184 (2004).

In Holmes, the Court of Appeal affirmed the trial court’s order granting summary adjudication on the pregnancy harassment claim. The court held that “[a]n evaluation of all the circumstances surrounding Holmes’s employment discloses an absence of evidence from which a reasonable jury could objectively find that Petrovich created a hostile work environment for a reasonable pregnant woman.” Id. at 1059. There, the plaintiff relied on the employer’s emails, in which the employer, Petrovich, “implied she had deceived him about her pregnancy, stated he was offended that she had changed the period of time she would be absent for maternity leave, and asserted that her pregnancy was an extreme hardship on his business. She also complain[ed] that Petrovich unnecessarily forwarded to others her e-mail containing personal information about her age, prior miscarriages, and the possibility she would have terminated her pregnancy if the amniocentesis results had revealed problems with the fetus. Holmes assert[ed] that Petrovich did this to humiliate her.” Id. at 1060. This evidence, however, only amounted to “isolated incidents” and did not show a “concerted pattern of harassment that is repeated, routine or generalized in nature.” Id. at 1061.

For additional information, please call our Los Angeles employment lawyers who focus on sexual harassment at (310) 499-0140.