Sexual Harassment
Quid Pro Quo
The essence of the quid pro quo theory of sexual harassment is that an individual “relies upon his apparent or actual authority [in order] to extort sexual consideration from an employee.” Henson v. City of Dundee, 682 F.2d 897, 910 (11th Cir.1982). The courts have stated that quid pro quo sexual harassment occurs whenever “employers condition employment benefits on sexual favors.” See, e.g., Ellison v. Brady, 924 F.2d 872, 875 (9th Cir.1991).
Hostile Work Environment
The proper analysis for employer liability in hostile environment cases is what management-level employees knew or should have known, not whether an employee was acting within his “scope of employment.” See EEOC v. Hacienda Hotel, 881 F.2d 1504, 1515-16 (9th Cir.1989) (“[E]mployers are liable for failing to remedy or prevent a hostile or offensive work environment of which management-level employees knew, or in the exercise of reasonable care should have known.” (emphasis added)).
The “governing law,” see Anderson, 477 U.S. at 248, 106 S.Ct. 2505, requires an employee o generate genuine issues of material fact that the harasser’s conduct “was sufficiently severe or pervasive to alter the conditions of [Zetwick’s] employment and create an [objectively] abusive working environment.” Craig v. M & O Agencies, Inc., 496 F.3d 1047, 1055 (9th Cir. 2007) (internal quotation marks omitted); see id. (identifying the elements of a prima facie case of a sex-based hostile work environment (internal quotation marks omitted)); accord Geo Grp., Inc., 816 F.3d at 1206 (“An employer is liable under Title VII for conduct giving rise to a hostile environment where the employee proves (1) that he was subjected to verbal or physical conduct of a harassing nature, (2) that this conduct was unwelcome, and (3) that the conduct was sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” (internal quotation marks omitted)).
California Law
California law (called the Fair Employment and Housing Act or FEHA) prohibits discrimination, harassment and retaliation. The law also requires that employers “take reasonable steps to prevent and correct wrongful (harassing, discriminatory, retaliatory) behavior in the workplace (Cal. Govt. Code §12940(k)). The Department of Fair Employment and Housing (DFEH) is the state’s enforcement agency related to the obligations under the FEHA.