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What is Sexual Harassment?

Are these acts of sexual harassment an employer could be liable for?

...harasser tells victim to clean in a French Maid costume... 

...jokes about another woman's breast size...

...comments about women's sexual performance... 

The answer might surprise you. Title VII of the Civil Rights Act of 1964 and the Fair Employment and Housing Act use three basic requirements to define sexual harassment:

     1. The victim is subjected to unwelcome sexual advances, conduct or comment;

     2. The harassment is based on sex; and

     3. The acts of harassment are so "severe or pervasive" as to alter conditions of work environment and create an abusive working environment.

Sexual harassment is a necessarily fact-based determination. The misconduct must be sufficiently severe, or if minor, pervasive. The case of Westendorf v. West Coast Contractors demonstrates the fact-based nature of the "severe or pervasive" requirement.

  • The Victim's duties are referred to as "girly work" by a harasser who quickly apologizes.
  • The Victim begins working once a week with the harasser and a second harasser. Both harassers participate in jokes about another woman's breast size.
  • The second harasser tells victim to clean in a French Maid costume and that women are lucky because of how they perform sexually. The first harrasser smiles and chuckles.
  • Victim reports each incident to the company president who warns the harassers their behavior must stop- it continues. The second harasser goes on to tell Victim "f*** you" during a disagreement, and the first harasser smiles when asked to intervene.

Do offensive comments about breast size, French maid costumes and sexual performance constitute a sexual harassment claim? According to the Westendorf court they do not- the court dismissed the claim. The court held it did not condone "crude and offensive remarks" but ruled sexual harassment did not occur because:

1. The Victim only worked with the harassers once a week for three months

2. Only four occassions of sexual comments

3. The first harasser quickly apologized for the "girly work" comment; victim did not complain

4. Harassment was not physical and the Victim's work did not suffer

Although arguably the Victim's claim included unwelcome sexual advances, comments and conduct and the harrassers focused on the Victim's sex, the misconduct did not fulfill the third requirement for sexual harassment- the "severe or pervasive" standard. Sexual harassment, like many other employment law issues, is ultimately dependent on how the judge or jury interpret the facts as applied to the law.

Michael Freeland

Contact Freeland Law APC for a free 30-minute consultation with Michael Freeland, experienced employment lawyer serving La Mesa, California.

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