On October 15, 2017, Governor Jerry Brown signed into law, SB 396 (Lara).  The new law requires the sexual harassment prevention training programs for employers of 50 or more employees to specifically include within their training the prevention of harassment based on gender identity, gender expression, and sexual orientation.  One section of the new law specifically states that an “employer shall also provide training inclusive of harassment based on gender identity, gender expression, and sexual orientation as a component of the training and education specified in subdivision (a). The training and education shall include practical examples inclusive of harassment based on gender identity, gender expression, and sexual orientation, and shall be presented by trainers or educators with knowledge and expertise in those areas.”  (Gov. Code §12950.1.)  This is a solid clarification of the laws protecting employees from unlawful harassment California.

The section amended by the new law also states that “abusive conduct” as referred to in the law, “means conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests. Abusive conduct may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person’s work performance. A single act shall not constitute abusive conduct, unless especially severe and egregious.”

Quid pro quo sexual harassment is perhaps the most well known of all the types of sexual harassment. Quid pro quo means “this for that” and this type of sexual harassment refers to a work situation in which someone with power within a company conditions a job or job benefit on the worker’s submission to sexual/romantic advances.  It can also include a situation in which the person in power directs negative treatment toward the worker when the worker rejects such sexual/romantic advances.  At trial in California, the jury will likely receive some form of the following jury instruction from California’s Approved Civil Jury Instructions (“CACI”), number 2520:

Quid Pro Quo Sexual Harassment—Essential Factual Elements

Plaintiff (“Worker”) claims that Defendant (“Company”), subjected her to sexual harassment. To establish her claim, Worker must prove all of the following:

1. Worker was an employee or independent contractor with Company;
2. That Harasser made unwanted sexual advances toward Worker or engaged in other unwanted verbal or physical conduct of a sexual nature toward Worker;
3. That job benefits were conditioned, by words or conduct, on Worker’s acceptance of Harasser’s sexual advances or conduct;

or

That employment decisions affecting Worker were made based on Worker’s acceptance or rejection of Harasser’s sexual advances or conduct;

4. That at the time of the conduct, Harasser was a supervisor or agent for Company;
5. That Worker was harmed; and
6. That the conduct of Company, was a substantial factor in causing Worker’s harm.

If the jury finds that each of these requirements are proven by a “preponderance of the evidence” (we will provide more on this concept in future posts), the jury should reach a verdict in favor of the Worker. Check back here in the future for more on legal concepts relating to sexual harassment and employment law.

Quid pro quo sexual harassment is not the only type of sexual harassment.  In future posts we will distinguish quid pro quo sexual harassment from hostile work environment harassment.  Check back here frequently for more on legal concepts relating to sexual harassment and employment law.

Disclaimer: The above is for informational purposes only.  Because the law is constantly changing and being refined in the courts, the above statements are based on California law at the time of publication, and should not be relied upon in court.  Every litigant and attorney is strongly encouraged to conduct their own independent research.