Sexual Harassment in the workplace Law in California

California law prohibits sexual harassment in the workplace. Under California law, "an unlawful employment practice" is defined as an employer's refusal to hire, employ, or select for a training program leading to employment, any person because of that person's "race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, or sexual orientation . . . ." ( 12940, subd. (a).) With respect to sexual harassment in the workplace, the prohibited conduct ranges from expressly or impliedly conditioning employment benefits on submission to, or tolerance of, unwelcome sexual advances to the creation of a work environment that is "hostile or abusive to employees because of their sex." (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 462 (Miller).) Thus, FEHA "recognizes two theories of liability for sexual harassment claims. .' . . . '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.'" (Herberg v. California Institute of the Arts (2002) 101 Cal.App.4th 142, 149 (Herberg).) In construing FEHA, the California high court has held that the hostile work environment form of sexual harassment is actionable only when the harassing behavior is pervasive or severe. (Miller, supra, 36 Cal.4th at p. 462.) To prevail on a hostile work environment claim under FEHA, an employee must show that the harassing conduct was "severe enough or sufficiently pervasive to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees because of their sex." (Miller, supra, at p. 462.) There is no recovery "for harassment that is occasional, isolated, sporadic, or trivial." (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 283 (Lyle).) Courts that have construed California employment discrimination laws have held that an employee seeking to prove sexual harassment based on no more than a few isolated incidents of harassing conduct must show that the conduct was "severe in the extreme." (Herberg, supra, 101 Cal.App.4th at p. 151; accord, Lyle, supra, 38 Cal.4th at p. 284, citing Herberg with approval.) A single harassing incident involving "physical violence or the threat thereof" may qualify as being severe in the extreme. (Herberg, supra, at p. 151.) Under FEHA, the existence of a hostile work environment depends upon "the totality of the circumstances." (Miller, supra, 36 Cal.4th at p. 462.) "To be actionable, 'a sexually objectionable environment must be both objectively and subjectively offensive.'" (Lyle, supra, 38 Cal.4th at p. 284.) Therefore, "a plaintiff who subjectively perceives the workplace as hostile or abusive will not prevail . . . if a reasonable person . . . considering all the circumstances, would not share the same perception." (Ibid.)