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California law prohibits sexual harassment in the workplace. Originally enacted in 1980, Government Code section 12940 is part of the Fair Employment and Housing Act. The prohibited conduct ranges from expressly or impliedly conditioning employment benefits on submission to, or tolerance of, unwelcome sexual advances to the creation of work environment that is "hostile or abusive to employees because of their sex." Miller v. Department of Corrections (2005) 36 Cal.4th 446, 462.
It's important to note that the California courts have consistently held that the hostile work environment from sexual harassment is actionable only when the harassing behavior is pervasive or severe. This means that to prevail on a hostile work environment claim, an employee must show that the harassing conduct was "severe enough or sufficiently pervasive to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees because of their sex. There is no recovery for harassment that is occasional, isolated, sporadic, or trivial. Thus, the existence of a hostile work environment depends upon the totality of circumstances. Generally, the more severe the conduct is, the less pervasive it has to be in order to be actionable. Thus, a single harassing incident involving physical violence or a threat thereof may qualify as severe and extreme. Herberg v. California Institute of the Arts (2002) 101 Cal.App.4th 142, 151.
Generally, however, to be actionable - a sexually objectionable environment must be both objectively and subjectively offensive. Therefore, an employee who subjectively perceives the workplace as hostile or abusive, will not prevail if a reasonable person considering all the circumstances, would not share the same perception.
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