While FEHA prohibits harassment towards several protected classes of individuals, sexual harassment is by far the most common claim invoked out of those categories.

While the term "sex" denotes the biological differences between males and females, gender refers to the cultural implications attached to each sex. Harassment based on sex or gender includes not only harassment directed towards the physical differences between the sexes, but also the stereotypes and attitudes about the sexes.

Generally there are "two distinct categories of sexual harassment claims: quid pro quo and hostile work environment." Fisher v. San Pedro Peninsula Hospital, (1989) 214 Cal. App. 3d 590, 607.

• Quid pro quo harassment occurs when submission to sexual conduct is made a condition of....employment benefits. Id.
• The harassment must occur by the supervisor (person with higher authority over the employee) while the supervisor is acting as an agent of the employer. State Dept. of Health Services v. Superior Court, (2003) 31 Cal. 4th 1026, 1041.

Of course, examples in the real world may be far less obvious. If a supervisor and an employee have established a pattern of flirting, but the employee suddenly stops flirting and in response the employer assigns the employee a harder workload, this too would constitute sexual harassment.

In determining whether the harassing conduct is severe or pervasive enough to constitute a hostile work environment, courts look to the factors of:

• Athe nature of the unwelcome sexual acts or works (for example: generally physical touching is more offensive than unwelcome verbal abuse)
• the frequency of the offensive encounters,
• the total number of days over which all of the offensive conduct occurs,
• and the context in which the sexually harassing conduct occurred. Fisher v. San Pedro Peninsula Hospital, 214 Cal. App. 3d 590, 610.

Harassing conduct must be found severe and pervasive enough to create an objectively hostile or abusive work environment ; an environment that a reasonable person would find hostile or abusive, and the victim must subjectively perceive the environment to be abusive. Harris v. Forklift Sys., (1993) 510 U.S. 17, 21-22.

• The objective standard is understood through the perspective of a Areasonable employee." San Pedro Peninsula Hospital, (1989) 214 Cal. App. 3d 590, 609.

It is unlawful "for an employer....to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring." Cal Gov Code ' 12940(k).

• The Trujillo v. North County Transit Dist. case creates a tort under this statute with the usual elements of a tort, enforceable by private plaintiffs, [who] have established: defendants "legal duty of care toward plaintiffs, breach of duty (a negligent act or omission), legal causation, and damages to the plaintiff.", (1998) 63 Cal. App. 4th 280, 286.

Sexual harassment is normally a separate cause of action from sex discrimination. However, harassment is actionable as "discrimination" if it is "so severe or pervasive as to alter the conditions of [the victim's] employment and create an abusive working environment." Clark County School Dist. v. Breeden, (2001) 532 US 268, 270.

Employers can require an employee to "adhere to reasonable workplace appearance, grooming, and dress standards," but an employer must "allow an employee to appear or dress consistently with the employee's gender identity." Cal. Gov. Code § 12949. On the other hand, forcing unduly burdensome appearance standards on a particular gender is prohibited. Frank v. United Airlines, Inc. (9th Cir. 2000) 216 F3d 845, 854. In addition, requiring a gender to wear sexually provocative clothing constitutes sex discrimination. Jespersen v. Harrah's Operation Co., Inc., 444 F3d at 1113. It is also sex discrimination to require a particular gender to meet a certain level of attractiveness. Yanowitz v. L'Oreal USA, Inc., (2005) 36 C4th 1028, 1044.

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