Sexual harassment is illegal. In order to make out a prima facie case of sexual harassment, a plaintiff must produce evidence of treatment that "a reasonable woman would consider sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment."
Whether the sexual conduct complained of is sufficiently pervasive must be determined from the totality of the circumstances. The factors to be considered in evaluating the totality of the circumstances include: (1) the nature of the unwelcome conduct; (2) the frequency of the offensive conduct;1 (3) the total number of days over which all of the offensive conduct occurred; and (4) the context in which the offensive conduct occurred.
The Supreme Court has confirmed that courts should take a "middle path" approach in hostile environment cases: Sexual or gender-based conduct that is abusive, humiliating, or threatening violates the law if such hostile conduct pollutes the victim's workplace, making it more difficult for her to do her job and to take pride in her work.
Finally, a cause of action for hostile work environment need not allege sexual advances or overtones. Rather, it is "only necessary to show that gender is a substantial factor in the discrimination and that if the plaintiff 'had been a man she would not have been treated in the same manner.'"
If you have a question about your legal rights, or wish to speak to an attorney about your situation, please call us today at 510-663-9240, or contact us online to discuss your legal rights.
1"The required showing of severity or seriousness of the harassing conduct varies inversely with the pervasiveness or frequency of the conduct." Ellison, supra, 924 F.2d at 878.