Has the California law on Sexual Harassment changed?

Yes and no is the answer. The words of the law have not changed, but the interpretation of the law has changed significantly. The controlling statute is Government Code, § 12940. Under the statute, sexual harassment must be “severe or pervasive” enough to create a “hostile work environment”, which would change the “terms and conditions” of employment. Since the statute was passed years ago, the definition of sexual harassment has not been substantially changed. What has changed is the perception by the public as to what sexual harassment is.

Perceptions by female employees are different than male employees. In an early Supreme Court decision, the Court held in interpreting “severe and pervasive” that, other than perhaps rape, the incident must be repetitive.

Therefore, the Court held that a woman whose breast was groped on a single occasion could not bring an action for sexual harassment. In a case of a male employee, the Supreme Court held in interpreting what is “severe”, where men showered together in an offsite location and played “grab ass”, was not severe enough to constitute sexual harassment. These cases have not been over turned, but I believe that today the Court would interpret the same facts differently. Certainly, today's juries would find a different result.

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