COURT OF APPEAL OF CALIFORNIA, FIRST APPELLATE DISTRICT, DIVISION FOUR
DISCUSSION
1. Sexual Harassment
California's Fair Employment and Housing Act (FEHA) prohibits an employer from harassing an employee on the basis of race, sex, or other specified grounds. (Gov. Code, 12940, subd. (j)(1).) In interpreting FEHA, California courts have looked to federal court decisions interpreting title VII of the federal Civil Rights Act (42 U.S.C. 2000e-2(a)(1)) and have held that FEHA is violated only when the harassment was sufficiently severe or pervasive to alter the conditions of the victim's employment and create a hostile working environment. ( Etter v. Veriflo Corp. (1998) 67 Cal.App.4th 457, 464-465 and cases cited; Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1123-1124.)
With respect to a claim of sexual harassment under title VII, the United States Supreme Court has declared that determining whether an environment is hostile or abusive cannot be done with mathematical [*6] precision but requires looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance. ( Harris v. Forklift Systems, Inc. (1993) 510 U.S. 17, 23, 126 L. Ed. 2d 295, 114 S. Ct. 367.)
These factors are generally consistent with an earlier California Court of Appeal decision: Whether the sexual conduct complained of is sufficiently pervasive to create a hostile or offensive work environment must be determined from the totality of the circumstances. [Citation] . . . [?] The factors that can be considered in evaluating the totality of the circumstances are: (1) the nature of the unwelcome sexual acts or words (generally, physical touching is more offensive than unwelcome verbal abuse); (2) the frequency of the offensive encounters; (3) the total number of days over which all of the offensive conduct occurs; and (4) the context in which the sexually harassing conduct occurred. [Citation.] [?] In determining what constitutes sufficiently pervasive harassment, [*7] the courts have held that acts of harassment cannot be occasional, isolated, sporadic, or trivial, rather the plaintiff must show a concerted pattern of harassment of a repeated, routine or a generalized nature. [Citation.] ( Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal. App. 3d 590, 609, 610, 262 Cal. Rptr. 842; accord Etter v. Veriflo Corp., supra, 67 Cal.App.4th at p. 465.)
More recently, the Supreme Court extended sexual harassment to same-sex interactions, reiterating that the test is an objective one: The objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff's position, considering all the circumstances. [Citation.] In same-sex (as in all) harassment cases, that inquiry requires careful consideration of the social context in which particular behavior occurs and is experienced by its target . . . . The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed. Common sense, and an appropriate [*8] sensitivity to social context, will enable courts and juries to distinguish between simple teasing or roughhousing among members of the same sex, and conduct which a reasonable person in the plaintiff's position would find severely hostile or abusive. ( Oncale v. Sundowner Offshore Services, Inc. (1998) 523 U.S. 75, 81-82, 140 L. Ed. 2d 201, 118 S. Ct. 998; see also Mogilefsky v. Superior Court (1993) 20 Cal.App.4th 1409, 1418 [same gender sexual harassment may be the basis of a cause of action for sexual harassment in violation of FEHA].)
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