What Are the Definitions of Sexual Harassment Under Federal and California State Law?

By Barrie Gross

Most employers are subject to federal, state, and local laws that prohibit, among other things, sexual harassment. While the definitions of sexual harassment are similar, it is important to take the time to read them and be familiar

with the type of conduct that could violate the law. When employers write harassment policies, understanding the different definitions and including examples of prohibited conduct in plain language will be helpful for communicating employer expectations. It also is important to keep in mind (and to include in harassment policies) that harassment based on any protected category, not just sex, is prohibited.

Title VII of the Civil Rights Act of 1964, a federal law, prohibits sex harassment in employment, including harassment based on sex, pregnancy, childbirth, and related medical conditions. The Equal Employment Opportunity Commission (EEOC) is the federal agency charged with enforcing these provisions. Title 29 of the Code of Federal Regulations, section 1604,* contains the following definition of harassment under federal law:

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when:

• Submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment,
• Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or
• Such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.

Most states laws also prohibit sexual harassment in employment, such as California's Fair Employment and Housing Act (FEHA). The FEHA provides that harassment because of sex includes sexual harassment, gender harassment (including same-sex harassment), and harassment based on pregnancy, childbirth, or related medical conditions. The Fair Employment and Housing Commission regulations define sexual harassment as unwanted sexual advances, or visual, verbal, or physical conduct of a sexual nature.* And California's Department of Fair Housing and Employment, the state agency charged with enforcement of the FEHA, provides a list of examples that could constitute violations of California's law*:

• Unwanted sexual advances
• Offering employment benefits in exchange for sexual favors
• Making or threatening reprisals after a negative response to sexual advances
• Visual conduct: leering, making sexual gestures, displaying of suggestive objects or pictures, cartoons, or posters
• Verbal conduct: making or using derogatory comments, epithets, slurs, and jokes
• Verbal sexual advances or propositions
• Verbal abuse of a sexual nature, graphic verbal commentaries about an individual's body, sexually degrading words used to describe an individual, suggestive or obscene letters, notes, or invitations
• Physical conduct: touching, assault, impeding or blocking movements

Regardless of whether federal or state -- or both -- laws apply, the types of conduct that could be considered harassing are similar and generally fall into three categories: verbal, physical, and visual. Here are some examples:

Verbal:

• Dirty jokes
• Derogatory comments, epithets, or slurs (based on any protected category)
• Requests for dates
• Suggestive noises (such as whistling)
• Suggestive comments
• Terms of endearment
• Comments about someone's appearance
• Demands to submit to sexual requests
• Offering employment benefits in exchange for sexual favors
• Swearing
• Flirting
• Gossip about an employee's personal life
• Personal questions
• Personal and inappropriate voice mail
• Threatening reprisal for rejecting sexual advances or complaining of them

Physical:

• Hugging or kissing
• Touching (such a neck massages, hand on shoulder, hand around waist)
• Blocking normal body movements or making threatening body movements
• "brushing" by someone
• not observing personal space

Visual:

• Pictures, calendars, magazines, catalogues
• Screen savers
• Suggestive gestures
• Inappropriate e-mails, calendars, cartoons, or other images
• Leering or other suggestive facial expressions
• Staring at body parts
• Winking

Being explicit about the conduct that is prohibited under the law and including examples in company policies is helpful to everyone. Employers will have made clear the types of conduct that would be considered a violation of policy and employees will know the standards for measuring their own conduct. And while no one wants to work in a sterile workplace, it is important to emphasize to employees that professional behavior is expected at all times. Even if the conduct does not cross the line into illegal conduct, it may simply not be appropriate for the workplace.

Work with your human resources department and legal counsel to review your discrimination and harassment policies on a regular basis. It is important that they contain all the necessary information to educate employees and maintain a healthy work environment. The definitions also should be discussed in any harassment training you conduct for your workforce.

*This article was written in February 2006. Be sure to review the definitions of harassment over time because the definitions are subject to change.

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Note: This article does not constitute legal advice and should not be relied upon as legal advice. If you have a legal issue or wish to obtain legal advice, you should consult an attorney in your area concerning your particular situation and facts. Nothing presented on this site or in this article establishes or should be construed as establishing an attorney-client or confidential relationship between you and Barrie Gross. This article is provided only as general information, which may or may not reflect the most current legal developments or be complete.