Did you know that Government Code section 12947.5 makes it unlawful for an employer to refuse to permit an employee to wear pants because of the sex of the employee?

An interesting legal principle, just one of many which fall within the purview of employment law. Even over the last ten years, employment law has changed considerably. One example of these changes is the enactment of Government Code sections 12900-12996, also known as the "California Fair Employment and Housing Act" (or "FEHA"). Created by the California legislature in 1990 (around the same time as the Federal legislature passed the American Disabilities Act of 1990), FEHA, among other things, makes it unlawful for an employer to discriminate against an employee based on his or her "race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, or sex."

Of the many employment law issues, perhaps the most prevalent, and debatable, is that of sexual harassment. Having received national attention from Anita Hill's charges of sexual misconduct by Supreme Court nominee (and now justice) Clarence Thomas, and most recently by Paula Jones' lawsuit against then-Governor, now-President Bill Clinton, the courts have paid much attention to the laws defining sexual harassment.

Sexual harassment (as defined by California and the federal courts) falls into two categories: quid pro quo harassment and hostile work environment harassment. Quid pro quo harassment, as the name implies, occurs when an employee must submit to unwelcome sexual advances as part of his or her employment (for example, sexual favors in return for increase in pay). "Hostile work environment" harassment occurs when an employee is subject to sexual misconduct (be it physical actions by another or others, or verbal sexual comments or innuendos) which creates a work environment so intolerable that a "reasonable person" would not be able to work under those conditions. Another test for sexual harassment is whether or not the complained-of conduct completely impairs the employee from performing his or her job.

Usually, sexual harassment falls within one of these categories, but under certain circumstances may be both. While both men and women can be harassed sexually, the more common case finds the female as the plaintiff.

What is sexual harassment? There is no simple definition as to what constitutes sexual harassment. In a court of law, whether sexual harassment occurred is a question which is determined by the facts of each individual case. First, the complained-of activity (or activities) must be "continuous" and "sufficiently severe or pervasive" to create an abusive working environment. A single incident, or a few isolated incidents, therefore, usually do not create this "hostile work environment." California courts have created legal "guidelines" which help define sexual harassment. These factors include: (1) the nature of the act (was the act an offensive touching, verbal abuse, or both), (2) the frequency of the encounters (every day, twice a week), (3) the total number of days in which the conduct occurred (over a three day period, or over a six-month period of time), and (4) the context in which the harassment occurred (during meetings, after hours, etc.).

Take the following example: Employee A makes a claims that employee B has sexually harassed her. A claims that B always touches her whenever they pass each other. Some basic questions would follow: What part of her body is B touching (her hands, her shoulders, her breasts)? Are these touches coupled with comments of a sexual or offensive nature? How often does B do this (every day, twice a day, once a week)? Has this been going on for a week, a month, six months, a year? Has the complained-of activity continued? Also, is B a co-worker or a supervisor?

Now compare these alternate scenarios:

Employee A began work in January. In June, A complains that on two occasions, B passed by her and touched her on the shoulders. A also says that B has not done this for about a month, and she has not said anything to him about the touching; or,

Employee A began work in May. In August, A complains that every time B passes by her, he caresses her shoulders, and has been doing this at least once a week since shortly after she began with the company. This touching is followed with statements of an offensive sexual nature. The last such encounter was this week. A has told B on several occasions not to touch her or talk to her in that manner, but B has not stopped. B is one of the senior partners at a law firm at which A is a new associate.

Even with these limited facts, the second hypothetical clearly demonstrates more egregious conduct than the first. The courts will apply (among other things) this same four part test to each case in which sexual harassment is alleged.

Is the fact that B is a senior partner relevant? Because sexual harassment cases are generally very fact-intensive, the status of the alleged aggressor (co-worker or supervisor) is almost always significant. For example, A's ability to complain to a supervisor may be greater if B were a co-worker, as opposed to a senior partner. On the other hand, perhaps B is good friends with A's supervisor, and A does not feel she can talk to that person. A may feel she is jeopardizing her pay increase, bonus, ability to work on certain cases, if she complains about B. The scenario changes again if B is A's supervisor, a discussion which doesn't fit in this article.

Sexual harassment cases are rarely clear cut. Liability of both employers and employees can depend on numerous factors, both legal and factual. Witness credibility often plays a role when stories are conflicting. The make-up of the jury could affect the outcome; some juries may be more sympathetic to a plaintiff, and others less. As always, no legal action has a guaranteed outcome.