Definition of Sexual Harassment
Definition of Sexual Harassment
Federal Law
Under federal law, “Sexual Harassment” is defined as conduct, on the basis of sex, that satisfies one or more of the following (34 C.F.R. § 106.30):
- A District employee conditioning the provision of an aid, benefit, or service of the District on the employee’s participation in unwelcome sexual conduct;
- Unwelcome conduct determined by a reasonable individual to be so severe, pervasive, and objectively offensive that it effectively denies the employee equal access to the terms and/or conditions of employment; or
- “Sexual assault” as defined in United States Code, title 20, section 1092(f)(6)(A)(v), “dating violence” as defined in United States Code, title 34, section 12291(a)(10), “domestic violence” as defined in United States Code, title 34, section 12291(a)(8), or “stalking” as defined in United States Code, title 34, section 12291(a)(30).
- “Sexual assault” means actual or intentional physical sexual acts against an individual without consent that may include: rape, rape and seduction, sodomy, lewd and lascivious acts, oral copulation, sexual penetration, sexual battery, and sexual assault, as defined under Education Code section 48900(n) and Penal Code sections 261, 266c, 286, 288, 288a, 289 and 243.4.
- “Dating violence” means violence committed by an individual who is or has been in a social relationship of a romantic or intimate nature with the victim (34 U.S.C. § 12291(a)(10)).
- “Domestic violence” means felony or misdemeanor crimes of violence committed by a current or former spouse or intimate partner of the victim, by an individual with whom the victim shares a child in common, by an individual who is cohabitating with or has cohabitated with the victim as a spouse or intimate partner, by an individual similarly situated to a spouse of the victim under the domestic or family violence laws of the jurisdiction receiving grant monies, or by any other individual against an adult or youth victim who is protected from that individual's acts under the domestic or family violence laws (Ed. Code § 48900, subd. (n)).
- “Stalking” means engaging in a course of conduct directed at a specific individual that would cause a reasonable individual to: (A) fear for his or her safety or the safety of others; or (B) suffer substantial emotional distress (34 U.S.C. § 12291(a)(30)).
- “Without consent” or “against that individual’s will” may include force, duress, violence, fear of immediate harm, or an individual’s inability to consent.
California Law
Under California law, “Sexual Harassment” is defined as any unwelcome sexual advances, unwelcome requests for sexual favors, or other unwelcome verbal, visual, or physical conduct of a sexual nature, whether it occurs between individuals of the same sex or individuals of opposite sex, under any of the following conditions (Ed. Code § 212.5; 5 C.C.R. § 4916; Gov. Code § 12940; 2 C.C.R. §§ 11029-11034):
- Submission to the conduct is explicitly or implicitly made a term or a condition of the employee's employment;
- Submission to, or rejection of, the conduct by the employee is used as the basis of an employment decision affecting the employee;
- The conduct has the purpose or effect of having a negative impact upon the employee’s work, or progress, or has the purpose or effect of creating an intimidating, hostile, or offensive working environment. The conduct is sufficiently severe, persistent, pervasive or objectively offensive, so as to create a hostile or abusive working environment or to limit the employee's ability to participate in or benefit from the terms or conditions of the employee’s employment; or
- Submission to, or rejection of, the conduct by the employee is used as the basis for any decision affecting the employee regarding benefits and services, honors, programs, or activities available at or through the District.
Examples of conduct that might constitute sexual harassment under California law include, but are not limited to:
- Unwelcome verbal conduct such as sexual flirtations or propositions; graphic comments about an individual’s body; overly familiar conversations; pressure for sexual activity; sexual jokes or stories; unwelcome sexual slurs, epithets, threats, or innuendoes; derogatory comments; sexually degrading descriptions; and/or the spreading of sexual rumors;
- Unwelcome visual conduct such as drawings, pictures, graffiti, or gestures; sexually explicit e-mails; and/or displaying sexually suggestive objects; or
- Unwelcome physical conduct such as massaging, grabbing, fondling, stroking, or brushing the body; touching an individual’s body or clothes in an overly familiar or sexual way; and/or cornering, blocking, leaning over, or impeding normal movements.
It is impossible to define every action or all words that could be interpreted as sexual harassment. These examples listed above are not meant to be a complete list of prohibited behavior.