Hostile Environment Sexual Harassment Case Law

Claims of a hostile or abusive working environment due to sexual harassment arise where a workplace is "permeated with 'discriminatory intimidation, ridicule, and insult' that is 'sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment' . . . ." (Harris v. Forklift Systems, Inc. (1993) 510 U.S. 17, 21; see also Meritor Savings Bank v. Vinson (1986) 477 U.S. 57, 67, Sheffield v. Los Angeles County Dept. of Social Services (2003) 109 Cal.App.4th 153, 160; Beyda, supra, 65 Cal.App.4th at pp. 516-517; Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal. App. 3d 590, 608 (Fisher).) The elements of such a cause of action are: "(1) plaintiff belongs to a protected group; (2) plaintiff was subject to unwelcome sexual harassment; (3) the harassment complained of was based on sex; (4) the harassment complained of was sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment; and (5) respondeat superior." (Fisher, supra, at p. 608.) In Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, the California Supreme Court, citing decisions applying Title VII, observed that not all workplace conduct that may be characterized as harassing affects a term, condition or privilege of employment within the meaning of Title VII. It must be both objectively and subjectively offensive: " 'Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment - an environment that a reasonable person would find hostile or abusive - is beyond Title VII's purview. Likewise, if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim's employment, and there is no Title VII violation.' " (Aguilar v. Avis Rent A Car System, Inc., supra, 21 Cal.4th at p. 130.) The requirement that the conduct be sufficiently severe or pervasive to create a working environment a reasonable person would find hostile or abusive is a crucial limitation that prevents sexual harassment law from being expanded into a "general civility code." (Oncale v. Sundowner Offshore Services, Inc. (1998) 523 U.S. 75.) The conduct must be extreme: " 'simple teasing,' offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the 'terms and conditions of employment.' " (Faragher v. City of Boca Raton (1998) 524 U.S. 775 at p. 788.) The harassment cannot be occasional, isolated, sporadic, or trivial; the plaintiff must show a" ' concerted pattern of harassment of a repeated, routine or a generalized nature.' " (Aguilar v. Avis Rent A Car System, Inc., 21 Cal.4th at p. 131.) Thus, for example, " 'mere utterance of an . . . epithet which engenders offensive feelings in a employee,' does not sufficiently affect the conditions of employment to implicate Title VII." (Harris v. Forklift Systems, Inc., supra, 510 U.S. at p. 21.) Rather, " 'sexual harassment creates a hostile, offensive, oppressive, or intimidating work environment and deprives its victim of her statutory right to work in a place free of discrimination, when the sexually harassing conduct sufficiently offends, humiliates, distresses or intrudes upon its victim, so as to disrupt her emotional tranquility in the workplace, affects her ability to perform her job as usual, or otherwise interferes with and undermines her personal sense of wellbeing.' " (Fisher, supra, 214 Cal. App. 3d at p. 608.) In Fisher, supra, 214 Cal. App. 3d 590, 611, the court recited a number of cases demonstrating a pattern of continuous, pervasive harassment, including one where the plaintiff had agreed to 40 or 50 acts of intercourse with her supervisor after repeated demands for sexual favors, the supervisor fondled her in front of other employees, followed her into the women's restroom and exposed himself to her; and forcibly raped her on several occasions. (Ibid.) Whether an environment is hostile or abusive can be determined only by looking at all the circumstances. (Harris v. Forklift Systems, Inc., supra, 510 U.S. at p. 23; Faragher v. City of Boca Raton, supra, 524 U.S. at p. 788.) "These may include 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. The effect on the employee's psychological well being is, of course, relevant to determining whether the plaintiff actually found the environment abusive. But while psychological harm, like any other factor, may be taken into account, no single factor is required." (Harris v. Forklift Systems, Inc., at p. 23; see Fisher, supra, 214 Cal.App.4th at p. 610 including in the totality of circumstances to be considered the nature of the threatening acts (in that physical touching is more offensive than unwelcome verbal abuse); the total number of days over which all of the offensive conduct occurs; and the context in which the sexually harassing conduct occurred; Sheffield v. Los Angeles County Dept. of Social Services, supra, 109 Cal.App.4th at p. 162.)