Sexual Harassment as a Result of Physical Touching

California Government Code §12940(j)(1) protects employees from sexual harassment by unwanted physical touching. Unwanted physical touching by a supervisor or coworker may create a hostile work environment. Hostile work environment is one of the two distinct categories of sexual harassment claims. The unwanted physical touching may arise in a non-offensive manner and then turn into offensive touching.

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

  • the 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.

An example: A female employee and her boss bump into each other a few times walking down the hall. The female employee does not make anything out of the incidents because she thinks they were just accidents. A week after the last incident, her boss comes into her office and he gets really close to her as they are talking. During the conversation, he goes behind her chair and begins to touch her shoulders and hair as they continue with the conversation. The next day, her boss comes into her office again. This time, the female employee is standing rather than sitting on her chair. As the conversation goes on, her boss grabs her by the waist and pulls her closer to his body and brushes against her body. The female employee then tells her boss to stop this inappropriate physical contact. If you are experiencing or have experienced a similar situation, contact our office.

Another example: A female employee was walking to her desk and when she was about to sit on her chair a co-worker came from behind and poked her behind. She immediately told the co-worker that she was not happy with his conduct and to please not do that again. The co-worker brushed her off and said it was just a joke. A few days later that same employee saw the female employee walking to the copy room and this time he groped her from behind. The female employee went to her supervisor and explained to him what had happened. The supervisor also brushed her off and said “He is just playing around. Do not get so offended”. As a result, the unwanted physical touching kept on occurring since the male co-worker was not being reprimanded for his actions. If you have experienced a similar situation, contact our office.

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