California sexual harassment has gained unprecedented attention in recent months, starting in Hollywood and expanding to include nearly every type of employer in the country. Sexual harassment is considered a form of sex discrimination under both federal and state laws. It can take two main forms. Quid pro quo sexual harassment occurs when a supervisor or manager makes sexual conduct of some sort a condition of employment, such as when an employee will receive better shift assignments if they date the boss. A hostile work environment occurs when the sexually inappropriate conduct of one or more other people in the workplace interferes with the ability to do one’s job. Federal and state laws require proof that the allegedly offensive conduct was “pervasive or severe.” See Cal. Civ. Code § 51.9(a)(2). A California state senator held a hearing in January 2018 to consider whether this standard is too stringent, looking at New York City’s employment statute for possible revisions to state law that could affect many California employers.
The U.S. Supreme Court has defined the “severe or pervasive” standard for hostile work environment claims under federal law as requiring evidence of “an environment that a reasonable person would find hostile or abusive.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). California courts apply the same standard for hostile work environment claims under the California Fair Employment and Housing Act (FEHA). See, e.g., Hughes v. Pair, 46 Cal.4th 1035, 1048 (2009). Determining whether the alleged offensive conduct was “severe or pervasive” has both a subjective and an objective component. It requires consideration of “a constellation of surrounding circumstances, expectations, and relationships,” rather than “a simple recitation of the words used or the physical acts performed.” Lyle v. Warner Bros. Television Prod., 42 Cal.Rptr.3d 2, 16 (2006).
A dissenting appellate court justice in the Hughes case cited above criticized the “severe or pervasive” standard, noting that the statute that uses that language, the Unruh Civil Rights Act (UCRA), “is not an employment discrimination statute,” and nothing indicates that the state legislature intended to mix this statute and the FEHA. Hughes v. Pair, 65 Cal. Rptr. 3d 619, 632 (Cal. App., 2d Dist. 2007) (Armstrong, Acting P.J., dissenting). The justice advocated for an “interpret[ation] based on the plain and ordinary meaning of the words” in the statute. Id. at 633. Other critics of the “severe or pervasive” standard point to the reportedly high percentage of sexual harassment complaints dismissed by the courts, arguing that the standard imposes too high a burden on complainants.
California State Senator Hannah-Beth Jackson (D-Santa Barbara) announced the hearing on the “severe or pervasive” standard of proof in late 2017. The purpose of the hearing was to consider other approaches to proving a hostile work environment. A New York City official offered testimony on the city’s employment discrimination law, which requires proof that a plaintiff “has been treated less well than other employees because of…gender.” Williams v New York City Hous. Auth., 61 A.D.3d 62, 78 (N.Y. App. Div., 1st Dept. 2009).
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