Hostile work environment sexual harassment is different from quid pro quo sexual harassment (which requires that job benefits were conditioned, by words or conduct, on the worker’s acceptance of the harasser’s sexual advances or conduct). In contrast, hostile work environment sexual harassment does not require the worker to show job benefits were conditioned on anything. Instead, the worker has to show only that he or she was an employee or a “person performing service pursuant to a contract” and that unlawful sexual harassment was directed at him or her and/or that he or she was aware that such harassment was being directed at other workers. In addition the worker must also show the conduct was severe or pervasive. At trial in California, the jurors deciding the case will probably receive California’s Approved Civil Jury Instructions (“CACI”), number 2521A, which should state something similar to the following (modified to fit the facts of the case):
Plaintiff (“the Worker”) claims that she was subjected to harassment based on sex or her gender while working at Defendant (“the Company”), causing a hostile or abusive work environment. To establish this claim, Worker must prove all of the following:
1. The Worker was an employee of the Company or a person providing services under a contract with the Company;
2. The Worker was subjected to unwanted harassing conduct because of sex or her gender;
3. The harassing conduct was severe or pervasive;
4. A reasonable woman in the Worker’s circumstances would have considered the work environment to be hostile or abusive;
5. The Worker considered the work environment to be hostile or abusive;
6. A supervisor engaged in the conduct or the Company or its agents knew or should have known of the conduct and failed to take immediate and appropriate corrective action;
7. The Worker was harmed; and
8. The conduct was a substantial factor in causing the Worker’s harm.
In future posts, we will explain some of the legal meaning behind some of the law’s legal terms, such as what a worker must show to prove “severe or pervasive” sexual harassment in the context of a hostile work environment claim based on sexual harassment.