Many workers are used to believing that sexual harassment hostile work environment is an unlawful conduct at work place which involves unwelcome sexual advances of a co-workers or a supervisor such as sexual innuendos, offensive touching, and alike. Although those are typical examples of a situation which is likely to be classified as sexual harassment, the offensive words or conduct directed at an employee because of his or her gender may create a hostile work environment even if those words or conduct are not sexual in nature. For example, using a word “bitch” repetitively in the presence of both men and women but in reference to women may constitute unlawful gender harassment. 

On the other hand, hostile words or conduct based solely on personal animosity is no actionable as sexual harassment in California even if the victim is of the opposite gender. As the court pointed out in once case – “Unfair, overbearing, or annoying treatment of an employee, standing alone, cannot constitute a sex discrimination claim. In other words, a conduct that is based on personal agenda or anger and not on gender is not grounds to claim sexual harassment. For instance, if a boss and a particular employee are not compatible, it would not be sexually discriminatory to harass employee on that basis. In other words, sexual/gender harassment requires showing that the employee was treated a certain way because of his or her gender. For example, where the employee was the only woman on the workforce, her coworkers’ acts of insubordination, dissemination of untrue rumors about her, and aspersions on her competence may contribute to a hostile work environment based on sex. 

The employer may assert a defense against liability for sexual harassment claim by showing that the employer exercised reasonable care to prevent and correct promptly any harassing behavior, and that the employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer to avoid harm otherwise. This corrective opportunities commonly include a section in the employee handbook explaining the procedures of complaining about harassment and the employer’s express commitment to address those complaints as soon as possible.

Suppose, you sign up with a temp employment agency to find a job, the place you in a temporary assignment at one of their clients’ sites where you end up being a victim of sexual harassment. How would be liable in this situation - the company where you were temporarily employed, the temp agency or both?

Under Mathieu v. Norrell Corp., 115 Cal.App.4th 1174 (2004), in the context of an individual who is employed by a temporary agency and assigned to work on the premises of the agency’s client, the purpose of the Fair Employment and Housing Act (FEHA) to safeguard an employee’s right to hold employment without experiencing discrimination is best served by applying the traditional labor law doctrine of “dual employers,” which holds that both the agency and the agency's client - company are employers for the purposes of FEHA anti-discrimination laws, and considers harassment by an employee of the client to be a coworker's harassment rather than harassment by a third party. This means, that a temporary agency may be liable for the sexual harassment that took place at one of it’s clients’ sites.

Like other defendants, the temporary employment agency may avoid liability for sexual harassment claim under FEHA by demonstrating that (i) it responded appropriately to claims of harassment made by the employee; and/or (ii) the agency was not aware of the alleged sexual harassment at the company until it had ceased.