WORKPLACE HARASSMENT IN THE SAN FRANCISCO BAY AREA

If you think you have been a victim of workplace harassment in the San Francisco Bay Area, you should read the outline below about what courts require in California to support a claim for hostile work environment sexual harassment. If you still think you may be a victim of harassment in the workplace, contact an attorney experienced in sexual harassment laws.

Sufficiently Severe or Pervasive

In order for a hostile work environment lawsuit to be viable, the harassment suffered must be sufficiently severe or pervasive to alter a person’s employment and create a hostile and abusive environment. There is no bright line rule for what conduct is “severe or pervasive enough” to constitute a hostile work environment. There is a level of uncertainty in this area of the law, and both the individual facts of a victim’s case and the court in which it is heard will affect whether the misconduct suffered will constitute unlawful sexual harassment.

Although there is a fine line in deciding whether harassing conduct is sufficiently severe or pervasive, the case law does give us some guidelines as to what conduct rises to the level of unlawful hostile work environment sexual harassment.

What is Sufficiently Severe?

In order for sexual harassment to be sufficiently severe to constitute hostile work environment sexual harassment, it must be seriously offensive and egregious conduct. Severity depends on the gravity and threatening or abusive nature of the harassing conduct.

Offensive touching or threatening behavior can constitute conduct that is sufficiently severe to create a hostile work environment. The California Supreme Court in the Friends Case (Lyle), stated that if harassment is not “severe in the extreme,” more than a few harassing incidents must have occurred to create a hostile work environment. The Court recognized that in order for a single incident of harassment to be sufficiently severe, it must involve “egregious conduct akin to a physical assault or threat thereof.”

Whether offensive touching will be considered severe will depend on how offensive and extreme the touching is. For example, rape, the most offensive and threatening kind of touching, clearly will be considered sufficiently severe. Conversely, mildly offensive touching, such as touching of a purported victim’s hair or arms, most likely will not be considered sufficiently severe to create a hostile work environment. Most cases are not clear cut, and it will be up to a judge or jury to decide whether the particular harassment suffered by a victim is sufficiently severe to create a hostile work environment.

What is Sufficiently Pervasive?

Harassment is sufficiently pervasive if it permeates the workplace and alters the victim’s working conditions so as to create a hostile and abusive working environment. The California Supreme Court in the Friends case (Lyle) summarized what is necessary for harassment to be considered sufficiently pervasive and said:

"With respect to the pervasiveness of harassment, courts have held that an employee generally cannot recover for harassment that is occasional, isolated, sporadic, or trivial; rather the employee must show a concerted pattern of harassment of a repeated, routine, or a generalized nature."

For example, if a supervisor asks an employee for a date a few times over the course of a few months, even after the employee’s immediate refusal to each invitation, this most likely will not be considered sufficiently pervasive. Although such romantic requests may offend the employee or cause the employee to feel awkward, such behavior might not so repetitive and intrusive that it permeated the workplace, creating a destructive and abusive environment.

On the other hand, if a supervisor is propositioning an employee at work every day, staring at the employee in a threatening way, and talking explicitly about the sexual things the supervisor imagines the employee engaging in, this creates a pattern of harassment permeating the workplace and creating a destructive and abusive environment.

Please do not hesitate to give us a call at 650-857-1600 or email us at brodericklaw@brodericklaw.com for a free consultation on how best to approach your workplace harassment problems with employers. At the Broderick Law Firm we are here to help you stop wrongful sexual harassment in the workplace.

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