Sexual Advances by a Supervisor With an Express or Implied Threat

California’s Fair Employment and Housing Act (FEHA) prohibits sexual harassment in the workplace. California Government Code § 12940(j)(1). Sexual harassment in the workplace is a serious area of concern. Quid pro quo harassment is one of the types of sexual harassment recognized by California. Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 607. Quid pro quo harassment occurs when a job benefit is directly tied to an employee submitting to unwelcome sexual advances. Only individuals with supervisory authority over the worker can engage in quid pro quo harassment, since it requires the harasser to have the authority to grant or deny job benefits, such as conferring a promotion or a favorable job performance evaluation. Generally, an employer is held to be strictly liable when a supervisor engages in quid pro quo harassment. This type of sexual harassment typically involves a supervisor abusing his authority to extort sexual consideration from an employee. Usually, the supervisor will make an unwelcome sexual advance on the employee. The employee might state that he or she is not interested or decline in some other manner. The supervisor will typically then threaten the employee either expressly or by implication that he or she will be terminated, demoted, lose some other job-related benefit, or lose an opportunity to move up and get a raise if the employee does not submit to the sexual advances or if the employee reports the supervisor’s conduct to management.

Example: A male employee alleged that on two occasions his supervisor, Levy, demanded he stay overnight in Levy's hotel suite. On the first occasion, Levy allegedly told the male employee that he would receive more money if he cooperated with what Levy wanted. Levy ordered the employee to play a pornographic video, he made lewd and lascivious comments about the film, and asked the male employee how much he would charge to perform acts similar to those depicted in the film. The following morning, Levy allegedly falsely implied to others that he and the male employee had engaged in anal sex. On the second occasion, Levy allegedly referred to the male employee in a profane and degrading manner and asked repeatedly about the male employee’s prior relationships. The next morning, Levy allegedly woke the male employee, asked him to remove his clothes, and told the male employee that he wanted to sleep next to him.

The male employee alleged he only went to Levy's hotel suite the second time after being told he had no choice in the matter, his attendance was mandatory, that another male employee was fired for not going to Levy's suite when instructed to do so, and that he should consider the consequences before refusing the request.

The employee then sued for sexual harassment. On appeal, the Court of Appeal ruled that “the alleged acts are sufficient to state a cause of action for sexual harassment within the meaning of [the FEHA].” Mogilefsky v. Superior Court (1993) 20 Cal.App.4th 1409, 1418.

Example: A female employee worked as a part-time customer service representative at an auto parts store. Her supervisors engaged in several incidents of inappropriate behavior and comments. Her supervisors spread rumors that she had a sexually transmitted disease and that she was engaged in a sexual relationship with a co-worker. Her supervisors suggested that she could make tons of money working as a stripper or being photographed for a magazine in a bikini. In one incident, a supervisor, while laughing, physically forced the female employee to turn around and display her buttocks to coworkers. When the female employee confronted the supervisor about the sexually transmitted disease rumor, he threatened to fire her on the spot if she raised the issue again. He supported his threat by claiming that he had a photograph of her kissing a co-worker in the store.

Example: A supervisor calls a new employee into his office and welcomes her to the workforce. After he welcomes her, he expresses to her that she is very attractive. The female employee is caught by surprise, so she just thanks him for his comment and goes back to work. By the end of the week, the supervisor calls the female employee to his office. This time he not only tells her how attractive she is, but also asks her out on a date. The female employee kindly declines the offer. The supervisor then tells the female employee that if she declines to go on a date with him, he could not guarantee that she would be working for the company much longer. If you are experiencing or have experienced a similar situation, contact our office.

Example: A supervisor repeatedly makes sexual remarks to an employee. The employee never says anything because she is afraid that no one is going to believe her over the supervisor. One day, the supervisor comes to the employee’s office and closes the door. The supervisor then proceeds to tell the employee that if she wants to move up in the company, then the employee will need to cooperate in a sexual affair. If you are experiencing or have experienced a similar situation, contact our office.

Though this article has focused on harassers in supervisory roles, bear in mind that “because a harasser need not exercise delegated power on behalf of the employer to communicate an offensive message, it does not matter for purposes of proving harassment whether the harasser is the president of the company or an entry-level clerk.” Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 706-707. The FEHA prohibits all sexual harassment in the workplace.

If you have experienced sexual harassment at your workplace, contact us via our online form.