I. Development of the Laws on Sexual Harassment

The Civil Rights Act of 1964

Title VII prohibits employment discrimination on the basis of sex, race, color, religion, or national origin. (1964)

The Equal Employment Opportunity Commission (EEOC),

The enforcing agency for Title VII, issued new guidelines interpreting the law to forbid sexual harassment as a form of sex discrimination. (1980) 

 The Civil Right Act of 1964 as amended in 1991

(1)  allowed appropriate remedies for intentional discrimination and unlawful harassment in the workplace, for example, jury trials and increased damages and

(2) prohibited retaliation in employment. (1991)

 In Ellison v. Brady, the court found that males and female sensibilities differ and the appropriate standard to use in sexual harassment cases is that of a “reasonable woman” rather than a “reasonable person.” (1991) The standard used the courts today is the term “reasonable person.”

California Fair Employment and Housing Act (FEHA)

California Government Code Section 12940 requires that non-supervisory employees may be held individually liable for sexual harassment Ca. Gov’t Code 12940(j)(3)), and their actions may create liability for their employer if the employer knew or should have known of the harassing conduct and failed to take immediate and appropriate corrective action in response there (Cal. Gov’t Code 12940(j)(1)).

Gender Identity Discrimination created a new protection for employees and applicants from discrimination based on gender, including gender identity. (2004)

Gender in this case means an individual’s actual sex, identify, appearance or behavior, regardless of whether the identity, appearance or behavior is different from that which is traditionally associated with the individual’s actual sex at birth. For example, transgender individuals are protected from discrimination and from a hostile work environment, and women perceived as too masculine or men perceived as effeminate.  This can impact workplace dress codes.

Assembly Bill 1825/California Government Code (12950.1)

Mandates two-hour training of supervisors and managers to prevent sexual harassment, discrimination and retaliation every two years.  The requirements of AB 1285 apply to employers with 50 or more employees. 

California Supreme Court in Miller v. Department of Corrections et al held that “…although an isolated instance of favoritism on the part of a supervisor toward a female employee with whom the supervisor is conducting a consensual sexual affair ordinarily would not constitute sexual harassment, when such sexual favoritism in a workplace is sufficiently widespread it may create an actionable hostile work environment in which the demeaning message is conveyed to female employees that they are viewed by management as ‘sexual playthings’ or that the way required for women to get ahead in the workplace is by engaging in sexual conduct with their supervisors or the management. (July 2005)

California Supreme Court in Yanowitz v L/Oreal held that (1) a subordinate who “blows the whistle” regarding a supervisor who directed her to hire a certain type of female, e.g., (blue eyes/blonde/shapely) to be his associate and fire the present female associate who had dark hair and dark skin showed that an appearance standard that is applied to one gender and not the other is sex discrimination unless the different treatment can be justified as a legitimate occupational qualification; (2) that such disparate treatment would constitute unlawful sex discrimination; and (3)Yanowitz’s supervisor knew of her concerns about carrying out the order because she repeatedly told him that she needed some justification for firing the present associate and the subordinate did not have to know whether a particular directive violates the law to be protected from being fired for not taking action on the directive.

Government Enforcement Agencies

for filing sexual harassment (form of sex discrimination) and other employment discrimination complaints 

State of California Department of Fair Employment and Housing (DFEH) After complaint is filed either issues a “Right to Sue” letter, or conducts an investigation.

Federal Government Equal Employment Opportunity Commission (EEOC) After complaint is filed either issues a “Right to Sue” letter, provides mediation, and if the mediation process fails, conducts an investigation.

For more information go to link: http://www.courtinfo.ca.gov/opinions/

Or contact G. Govine Consulting