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Bryant Whitten, LLP

Does harassment need to be both severe and pervasive?

Even with decades of legislation and near-continuous training in many organizations, there still seems to be some confusion regarding what constitutes sexual harassment. Whether information is being disseminated from friends, family members or media outlets, it is important for employees and employers alike to have a thorough understanding of what sexual harassment means.

One common question regarding sexual harassment centers on the notion of severe harassment versus pervasive harassment. California courts will look at the entirety of the situation and determine whether the hostile work environment was created through pervasive or severe factors.

The plaintiff does not need to prove that the harassment was both severe and pervasive; it is an either-or question.

Severe harassment can be a single, substantial instance. This instance can be unwanted physical touching or aggressive vandalism. If the action is strong enough, it only takes one instance to prove harassment.

Pervasive harassment involves instances of less serious conduct that occurs more frequently over a period of time. This type of harassment can involve the posting of racist or sexist cartoons in a common area, unwanted email notes or off-color comments on a regular basis.

Judges will look at these actions and determine if the severe or pervasive actions effectively altered the employee's working conditions.

There is one additional misconception to address when discussing severe and pervasive harassment. The workplace harassment need not be directed at the employee who ultimately files the claim. If one employee witnesses another being harassed, the witnessing employee might likely feel as if he or she is now working in a hostile environment. There are numerous governmental protections in place that ensure employees are able to work in a fair environment.

Source: U.S. Equal Employment Opportunity Commission, “Harassment” Accessed Nov. 13, 2014

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