I dissent.
Although Deputy Sheriff Nelson’s conduct was undoubtedly deplorable, it nevertheless fell “within the scope of his employment” for purposes of the indemnification statute (Gov. Code, § 825.2, subd. (b)) because it was “reasonably foreseeable” in the broad sense in which that term is used in the law of respondeat superior, i.e., because sexual harassment of a woman deputy sheriff working in a big-city jail a decade ago was not “so unusual or startling” that it would be unfair to include the resulting expense in the county’s costs of doing business.
The applicable rules of law are not in dispute.
First, as the majority observe (maj. opn., ante, at p. 1003), the term “scope of employment” as used in the Tort Claims Act has the same meaning that it *1026has “in cases involving actions by third persons against the employer for the torts of his employee” (4 Cal. Law Revision Com. Rep. (Dec. 1963) p. 814, fn. 3), i.e., the same meaning that it has in the common law doctrine of respondeat superior.
Second, in California the term “scope of employment” has been given a broad meaning for respondeat superior purposes. As the majority acknowledge (maj. opn., ante, at p. 1004), in this state an employee’s conduct may be within the scope of employment for respondeat superior purposes even if (1) it constitutes a willful and malicious tort, or (2) violates an express rule or policy of the employer, or (3) confers no benefit whatever on the employer; and (4) if the employee is combining his own business with that of his employer, “no nice inquiry will be made” into which activity he was actually engaged in when the injury occurred. (See generally, Perez v. Van Groningen & Sons, Inc. (1986) 41 Cal.3d 962, 968-970 [227 Cal.Rptr. 106, 719 P.2d 676] (Perez).) These rules are obviously applicable here.
Third, the test for determining when an employee’s conduct is within the scope of employment for respondeat superior purposes is set forth in our cases. The leading modem decision of this court on the doctrine of respondeat superior is Hinman v. Westinghouse Elec. Co. (1970) 2 Cal.3d 956 [88 Cal.Rptr. 188, 471 P.2d 988] (Hinman). Our unanimous opinion in that case recited (id. at p. 960) that “California cases have long recognized that the employer’s responsibility for the torts of his employee extends beyond his actual or possible control of the servant to injuries which are ‘risks of the enterprise.’ (Carr v. Wm. C. Crowell Co., 28 Cal.2d 652, 655-656 [171 P.2d 5]; George v. Bekins Van & Storage Co., 33 Cal.2d 834, 843 [205 P.2d 1037]; Fields v. Sanders, 29 Cal.2d 834, 841 [180 P.2d 684, 172 A.L.R. 525].) Chief Justice Traynor has pointed out: ‘The principal justification for the application of the doctrine of respondeat superior in any case is the fact that the employer may spread the risk through insurance and carry the cost thereof as part of his costs of doing business.’ (Johnston v. Long, 30 Cal.2d 54, 64 [181 P.2d 645].) Thus, it must be deemed settled in California that in accordance with the principal justification for the doctrine, the employer’s liability extends to the risks inherent in or created by the enterprise.” (Italics added and original italics deleted.)
The emphasized test, of course, is necessarily somewhat general in its terms. The question is how to determine whether a risk is “inherent in or created by” the enterprise on the facts of a specific case. The best answer so far to that question was given by the scholars Harper and James in the first edition of their treatise and adopted into the law of California in the much *1027cited case of Rodgers v. Kemper Constr. Co. (1975) 50 Cal.App.3d 608 [124 Cal.Rptr. 143] (Rodgers). The opinion in Rodgers makes it clear that “reasonable foreseeability” is not an alternative to the “inherent or incidental risk” test of the scope of employment, but a practical method of applying that test to specific facts. Thus the Rodgers opinion explains that “One way to determine whether a risk is inherent in, or created by, an enterprise is to ask whether the actual occurrence was a generally foreseeable consequence of the activity. However, ‘foreseeability’ in this context must be distinguished from ‘foreseeability’ as a test for negligence. In the latter sense ‘foreseeable’ means a level of probability which would lead a prudent person to take effective precautions whereas ‘foreseeability’ as a test for respondeat superior merely means that in the context of the particular enterprise an employee’s conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer’s business. (2 Harper & James, The Law of Torts, pp. 1377-1378. . . .)” (50 Cal.App.3d at pp. 618-619, italics added and original italics deleted.)
This court has repeatedly quoted with approval the test of foreseeability adopted in Rodgers (see Perez, supra, 41 Cal.3d at p. 968; John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438, 450, fn. 9 [256 Cal.Rptr. 766, 769 P.2d 948] (lead opn. of Arguelles, J.), 464-465 (conc. & dis. opn. of Kaufman, J.) (John R.); Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 209 [285 Cal.Rptr. 99, 814 P.2d 1341]), and the majority do so again (maj. opn., ante, at pp. 1003-1004). In addition, the foreseeability test of Rodgers “has been widely followed by the courts of appeal. . . .” (Childers v. Shasta Livestock Auction Yard, Inc. (1987) 190 Cal.App.3d 792, 803-804 [235 Cal.Rptr. 641] [citing cases and calling Rodgers “Clearly the leading case in this area”]; accord, Debbie Reynolds Prof. Rehearsal Studios v. Superior Court (1994) 25 Cal.App.4th 222, 227-228 [30 Cal.Rptr.2d 514]; State Farm Mut. Auto. Ins. Co. v. Haight (1988) 205 Cal.App.3d 223, 242 [252 Cal.Rptr. 162] [calling Rodgers “The classic analysis of the question of foreseeability in this context”].)1
Thus the correct test for determining when an employee’s conduct is within the scope of employment for respondeat superior purposes is simply the test we articulated in Hinman, i.e., whether the conduct is a risk “inherent *1028in or created by the enterprise,”2 and the best way to determine whether a risk is inherent in or created by an enterprise is to ask, with Rodgers and Harper and James, whether the employee’s conduct was “so unusual or startling” in the context of that enterprise that it would be unfair to include the resulting loss in the employer’s costs of doing business. I shall apply that test to the facts alleged.
First, as is often true, it will be helpful to identify what this case is not about. It is not about a group of priests who seduced a 16-year-old parishioner in the confessional and elsewhere. (Rita M. v. Roman Catholic Archbishop (1986) 187 Cal.App.3d 1453 [232 Cal.Rptr. 685].) It is not about a Sunday school teacher who repeatedly molested a second grader entrusted to his care. (Jeffrey E. v. Central Baptist Church (1988) 197 Cal.App.3d 718 [243 Cal.Rptr. 128].) It is not about a school janitor who molested and sexually assaulted an 11-year-old student in the janitor’s office. (Alma W. v. Oakland Unified School Dist. (1981) 123 Cal.App.3d 133 [176 Cal.Rptr. 287].) It is not about a junior high school mathematics teacher who molested a 14-year-old student engaged in correcting other students’ papers at the teacher’s apartment (John R., supra, 48 Cal.3d 438), or an elementary school teacher who molested a 5-year-old pupil in the classroom (Kimberly M. v. Los Angeles Unified School Dist. (1989) 215 Cal.App.3d 545 [263 Cal.Rptr. 612]). And it is not about a dance instructor who sexually abused a 15-year-old dance student in a trailer adjacent to the rehearsal studio. (Debbie Reynolds Prof. Rehearsal Studios v. Superior Court, supra, 25 Cal.App.4th 222.) In each of those cases the church or school had no reason to believe that its employee would betray his trust so far as to sexually molest a minor in his charge. In each case, therefore, under the foreseeability test of respondeat superior the employee’s conduct was “so unusual or startling” in the context of the particular enterprise that it would have been unfair to include the loss in the employer’s costs of doing business.
In sharp contrast, we are not dealing here with priests or schoolteachers or even ordinary office personnel, and the workplace where these events occurred was not a church or a school or an ordinary office. Rather, it was a big-city jail, and all the participants were adults and coworkers—indeed, all were deputy sheriffs, in uniform and on duty, doing the difficult and often stressful work of guarding or transporting accused or convicted criminals. Traditionally, of course, this work was done exclusively by men, just as the *1029vast majority of their charges—the jail inmates—were men. Indeed, there are few more male-dominated environments than jails and prisons. It was not until relatively recently that law enforcement authorities began to hire women as deputy sheriffs and correctional officers, and women are still a small minority of those so employed. In the case at bar the harassment occurred over a decade ago—in 1983 and 1984—only a few years after the Santa Clara Sheriff’s Department first employed women as deputy sheriffs.
These facts are relevant because I do not rely on the studies cited by the majority showing the widespread incidence of sexual harassment in the American workplace in general. (See, e.g., 1 Conte, Sexual Harassment in the Workplace (2d ed. 1994) pp. 1-2; Lindemann & Kadue, Sexual Harassment in Employment Law (1992) pp. 4-7.) Rather, as the majority emphasize, the test we should apply is whether the employee’s conduct was reasonably foreseeable “in the context of the particular enterprise” in which it took place. The question, therefore, is the incidence of sexual harassment by coworkers in traditionally male workplaces, and specifically in county jails, that have recently been integrated by sex.
The answer is clear: studies and case law both show that harassment by coworkers is pervasive in traditionally male workplaces that have recently been integrated by sex, and especially so in military-style institutions like law enforcement. “Co-worker harassment tends to occur most often in situations where women have entered jobs or workplaces traditionally occupied by male incumbents. Thus, plaintiffs in many co-worker harassment cases are women who have entered traditionally ‘male’ jobs such as police officer, firefighter, plumber, electrician, truck driver, engineer, car salesperson, pilot, air traffic controller, securities trader, surgeon, miner, automobile mechanic, airline mechanic, and railroad engineer. Other plaintiffs are women who work in traditionally ‘male’ work environments such as fire stations, warehouses, assembly line manufacturing operations, prisons, oil refining companies, paper mills, construction sites, steel plants, and the military.” (Lindemann & Kadue, Sexual Harassment in Employment Law, supra, pp. 234-235, fns. omitted, italics added, citing cases; accord, 1 Conte, Sexual; Harassment in the Workplace, supra, pp. 98-100, citing cases.)
Thus when a woman was hired by General Motors as a tinsmith apprentice in one of its factories, “She was the first woman to work in the tinsmith shop, and her male coworkers were unhappy about working with a woman.” (Carr v. Allison Gas Turbine Div. Gen. Motors (7th Cir. 1994) 32 F.3d 1007, 1009.) The male coworkers expressed their displeasure by sexually harassing the woman in a variety of ways, and she filed an employment discrimination *1030action in federal district court alleging a hostile work environment. Reversing a defense judgment, the circuit court directed judgment for the plaintiff on the question of liability. The court rejected inter alia a trial court finding that the plaintiff did not prove General Motors knew or should have known of the harassment and failed to stop it; instead the court reasoned, in an opinion by Chief Judge Richard Posner, that “General Motors was astonishingly unprepared to deal with problems of sexual harassment, foreseeable though they are when a woman is introduced into a formerly all-male workplace.” (Id. at p. 1012, italics added.)3
Although various explanations for coworker harassment of members of a female minority have been proposed, there is much support for the view that men employed in a traditionally male setting may perceive women entering their workplace as threatening either their job security or their self-esteem, and may use sexual harassment as a means to resist the intrusion. (Lindemann & Kadue, Sexual Harassment in Employment Law, supra, p. 235.) “For women in male-dominated jobs, harassment is less likely to take the form of supervisors’ demands for sexual favors and more likely to take the form of sexual taunts and other actions by co-workers that are part of a larger pattern of hostility intended to drive the women away.” (Schultz, Telling Stories About Women and Work: Judicial Interpretations of Sex Segregation in the Workplace in Title VII Cases Raising the Lack of Interest Argument (1990) 103 Harv. L.Rev. 1749, 1832-1833, fn. 321.) Other scholars agree: “ ‘By making insulting comments and touching women sexually, some men may try to “make life miserable” for women in the [nontraditional] jobs, encouraging them to leave. The relatively high turnover rate among women in [these jobs] suggests that this is a successful strategy to force women out.’ ” (Id. at p. 1834, fn. 328, quoting Gutek, Sex and the Workplace (1985) p. 119.) For example, when the Nevada Department of Prisons hired its first group of women correctional officers in the mid-1970’s, their integration into the prison system proved to be a “laborious and difficult process”: after establishing that women could in fact perform the duties of correctional officers, it was “necessary to train and indoctrinate the all-male staff which was then in place. Some of these staff members had expressed beliefs such as, ‘prisons are no place for women.’ Other officers were reluctant to recognize the status of the newly-hired women as full-fledged correctional officers .... [S]ome staff members manifested their opposition to the employment of women officers by engaging in sexual harassment *1031and sex discrimination.” (Snow v. Nevada Dept, of Prisons (D.Nev. 1984) 582 F.Supp. 53, 55.)
Whatever the reason, it is clear that the incidence of sexual harassment in traditionally male workplaces is high. In 1986, for example, “[a] study of women in the traditionally male fields of engineering, science, and management revealed that 75 percent of the respondents had experienced one or more types of harassment.” (1 Conte, Sexual Harassment in the Workplace, supra, p. 2, in. omitted, citing Lafontaine & Tredeau, The Frequency, Sources, and Correlates of Sexual Harassment Among Women in Traditional Male Occupations (1986) 15 Sex Roles 433, 436.) The situation in traditional military service is comparable. Thus in a recent study of 333 former servicewomen who sought Veterans’ Administration hospital services in 1992 and 1993, 90 percent of the subjects younger than 50 reported they had been sexually harassed while in the military. (Sex Abuse of Military Women, S.F. Chronicle (May 12, 1995) p. A4, cols. 4-6.) Even in a broader study of 10,750 servicewomen on active duty conducted in 1988 by the Department of Defense, fully 64 percent reported they had been sexually harassed. (Ibid.)
Turning to the particular context of the case at bar, we find that sexual harassment is also all too common in local police forces. One group of cases adjudicates complaints by women employees of police departments charging that they were sexually harassed by police officers or superiors. (See, e.g., Lankford v. City of Hobart (10th Cir. 1994) 27 F.3d 477, 478 [police dispatchers]; Henson v. City of Dundee (11th Cir. 1982) 682 F.2d 897, 899 [same]; Dirksen v. City of Springfield (C.D.111. 1994) 842 F.Supp. 1117, 1119 [police secretary]; Ball v. City of Cheyenne (D.Wyo. 1993) 845 F.Supp. 803, 806-807 [police dispatcher]; Froyd v. Cook (E.D.Cal. 1988) 681 F.Supp. 669, 671 [same, applying California law].)
Another group of cases addresses complaints by women police officers charging that they were sexually harassed by fellow officers or superiors. (See, e.g., Accardi v. Superior Court (1993) 17 Cal.App.4th 341, 346 [21 Cal.Rptr.2d 292]; Andrews v. City of Philadelphia (3d Cir. 1990) 895 F.2d 1469, 1474-1475, 1479; Barcume v. City of Flint (E.D.Mich. 1993) 819 F.Supp. 631; Poulsen v. City of North Tonawanda, N.Y. (W.D.N.Y. 1993) 811 F.Supp. 884, 888-889; Watts v. New York City Police Dept. (S.D.N.Y. 1989) 724 F.Supp. 99, 101-102; Haehn v. City of Hoisington (D.Kan. 1988) 702 F.Supp. 1526, 1529; Arnold v. City of Seminole (E.D. Okla. 1985) 614 F.Supp. 853, 858-859, 862-863.)
More specifically, the case law also illustrates the prevalence of sexual harassment of female law enforcement personnel working in prisons and *1032jails. One group of cases adjudicates complaints by women correctional officers in state prisons charging that they were sexually harassed by fellow officers or superiors. (See, e.g., Morgan v. Ford (11th Cir. 1993) 6 F.3d 750, 752, 756; Minteer v. Auger (8th Cir. 1988) 844 F.2d 569, 571; cf. Hirschfeld v. New Mexico Corrections Dept. (10th Cir. 1990) 916 F.2d 572, 574 [sexual harassment of state prison employee by correctional officer]; Cuesta v. Texas Dept, of Criminal Justice (W.D.Tex. 1991) 805 F.Supp. 451, 456-457 [sexual harassment of parole caseworker by supervisor].)
Still more numerous are complaints like those made in the case at bar, i.e., complaints by women deputy sheriffs or other women correctional officers in county jails charging that they were sexually harassed by fellow officers or superiors. (See, e.g., Crighton v. Schuylkill County (Mar. 14, 1995, E.D.Pa. Civ. A. No. 94-5658); Anthony v. County of Sacramento, Sheriffs Dept. (E.D.Cal. 1994) 845 F.Supp. 1396, 1399 [applying California law]; Sherod v. Wahl (Mar. 19, 1993, N.D.Ill. No. 91 C 7953); Sims v. Montgomery County Com’n (M.D.Ala. 1990) 766 F.Supp. 1052, 1070-1074; Bennett v. New York City Dept, of Corrections (S.D.N.Y. 1989) 705 F.Supp. 979, 984-985; cf. Handley v. Phillips (M.D.Pa. 1989) 715 F.Supp. 657, 674 [sexual harassment of county jail matron by warden].) For example, in Sims v. Montgomery County Com’n, supra, 766 F.Supp. 1052, 1070, the federal district court concluded that “sexual harassment in the Montgomery County Sheriff’s Department has permeated all ranks, from the lowest level corrections officers and deputy sheriffs to the sheriff himself, and is so pervasive and severe as to render the working conditions in the department psychologically intolerable for female officers.”
The majority seek to distinguish these cases on several grounds, but none refutes the simple reason why I cite them: I cite these cases not for their law but for their facts, i.e., to show the frequency with which women police and correctional officers complain of sexual harassment by fellow officers or superiors. The sheer number of such complaints revealed by these cases is certainly relevant to the issue whether sexual harassment of women deputy sheriffs by fellow officers is “unusual or startling.” And these complaints represent but the tip of the iceberg: because “Women often remain silent when confronted with sexual harassment” (Lindemann & Kadue, Sexual Harassment in Employment Law, supra, at p. 6, fn. omitted), it is to be expected that few women police and correctional officers will even file a formal administrative complaint charging misconduct by their fellow officers, and fewer still will “make a federal case out of it” by litigating a Title VII action (42 U.S.C. § 2000e et seq.) against their own employer. The few who do, therefore, speak for the many who experience such sexual harassment.
*1033The majority cite cases from other jurisdictions that it claims support its conclusion that the sexual harassment in this case was not within the scope of employment even though it occurred during work hours in a traditionally male-dominated workplace. But in only one of the cited cases (Tumminello v. City of New York (1995) 212 A.D.2d 434 [622 N.Y.S.2d 714]) did the workplace have anything to do with law enforcement (there the parties were both detectives); all the other cases involved such sex-neutral workplaces as an insurance office, a fast-food restaurant, a commodity brokerage firm, a city public works department, a travel agency, and a manufacturing company.
More important, in none of the cases cited by the majority did the court apply the California test for determining when an employee’s conduct is within the scope of employment for respondeat superior purposes. Instead each inquired, solely or primarily, whether the conduct furthered the employer’s business or was included in the employee’s duties. (E.g., Tumminello v. City of New York, supra, 622 N.Y.S.2d at p. 715; Phelps v. Vassey (1993) 132 N.C.App. 132 [437 S.E.2d 692, 695]; Dockter v. Rudolf Wolff Futures, Inc. (N.D.Ill. 1988) 684 F.Supp. 532, 536 [applying Illinois law].) But in California the employer’s business and the employee’s duties are not the determinants of scope of employment: applicable here are the many compensation cases holding that “quarrels, assaults, or horseplay among employees ‘may reasonably be regarded as an incident of the employment,’ even though they are in no way intended to further the employer’s business, if they are engendered by the associations or conditions of employment . . . .” (5 Harper et al., The Law of Torts, supra, § 26.8, p. 43, fn. 19, italics added.) This is because “Such associations ‘include the faults and derelictions of human beings as well as their virtues and obediences. Men do not discard their personal qualities when they go to work. Into the job they carry their intelligence, skill, habits of care and rectitude. Just as inevitably they take along also their tendencies to carelessness and camaraderie, as well as emotional makeup. In bringing men [and women] together, work brings these qualities together, causes frictions between them, creates occasions for lapses into carelessness, and for fun-making and emotional flareup. . . . These expressions of human nature are incidents inseparable from working together. They involve risks of injury and these risks are inherent in the working environment.’ ” (Carr v. Wm. C. Crowell Co. (1946) 28 Cal.2d 652, 656 [171 P.2d 5].) Here, when women deputy sheriffs were thrust into the traditionally male workplace of the county jail, sexual harassment became a risk “inherent in or created by the enterprise” and hence within the scope of employment for respondeat superior purposes.
The realities of this situation are best understood, moreover, not by the members of this court in our ivory tower far removed from the scene, but by *1034the correctional officers who actually work in our jails and prisons. Among the filings by amici curiae in this case is a brief by the California Correctional Peace Officers Association, which advises us that as a matter of fact “Sexual harassment is commonplace in correctional facilities.” The brief goes further: endeavoring to assist us by using the language of our test, the correctional officers’ association explains that “Sexual harassment in a correctional facility is indeed foreseeable and is neither unusual nor startling. Unfortunately, sexual harassment in a newly gender-integrated correctional facility is typical [of] and broadly incidental to the enterprise being undertaken by the employer.” It would be presumptuous for us to believe we know the conditions in the trenches better than the frontline troops themselves.
Finally, we need not speculate on the particular working conditions at the time and place of the events herein, i.e., in the Santa Clara County jail in 1983 and 1984: the record shows they were typical. At the arbitration hearing in this case Sergeant Pascual of the Santa Clara County Sheriff’s Department testified in relevant part as follows:
“Q. You have been around for a long time. Is it unusual for deputies working North County Jail to discuss things of sexual nature? A. No, police work, up until a few years ago, was primarily a male-oriented work. It is going to take us a little bit of time before we realize we now have ladies amongst us. Insofar as discussing sex, I don’t know what you mean by sex. Is cussing sex? Is talking about your home life sex? Is talking about when you were in the army sex? You talk about everything. Sometimes you use quote unquote the F-word. . . . It is a vulgar place to begin with. There is talk of everything.
“Q. Would it be uncommon in the jail to hear deputies talking about giving or getting head? A. Not uncommon.”
Sergeant Pascual went on to relate a specific exchange of a sexual nature between Deputy Bates and Deputy Nelson, and characterized it as follows:
“A. . . . That is just regular jail talk.
“Q. Regular jail talk? A. Amongst the deputies. It is just a way to get rid of the stress of the job.
“Q. When you said that this is jail talk, I want to just clarify that. Does that mean that you have heard that sort of expression before this occasion? A. You mean that type of talk?
*1035“Q. Yes. A. Yes, that is very common amongst deputies.
“Q. Male and female alike? A. Yes, yes.”
The views of Sergeant Pascual were confirmed by an even more experienced officer. Lieutenant Tiano had been a member of the Santa Clara County Sheriff’s Department since 1971. In support of plaintiffs’ motion for summary judgment, Lieutenant Tiano filed a sworn declaration in which he stated as follows:
“2. I have read Sergeant Pascual’s testimony as given in the arbitration hearing of Deputy Nelson. What Sergeant Pascual says is true, and has been true for as long as I have been employed in the county jails.
“3. The jails have always been a place where strong language has been used, including profanity and conversation laced with sexual innuendo. This conversation takes place often in a joking manner between jail personnel, both male and female. In general, profanity, sexually explicit language, banter, and horseplay are extremely common among co-workers and peers.
“4. This type of interaction is and was so common at county jails that it would be fair to say that every employee of the jails or [the county department of corrections] either knew of such interactions or should have known of such interactions. While the above description is true today, it is especially true of the period of Deputy Nelson’s alleged sexual harassment of Cynthia Bates, Toni Daugherty, and Zana Murphy. This occurred in roughly 1983-84 when the Department had recently begun employing women as deputy sheriffs. As Sergeant Pascual testified, the behavior of many male deputy sheriffs did not change immediately upon the arrival of the female deputy sheriffs.”
In short, as the California Correctional Peace Officers Association observes in its brief, “To claim that such behavior was unforeseeable under the set of circumstances presented by this case is ludicrous.”
The majority dismiss the foregoing evidence on the reasoning that “even assuming arguendo that the usage of profanity and crude language at the jail should have put the County on notice that Nelson’s actions were ‘foreseeable’ in a negligence sense despite the absence of a causal [nexus] between the acts of sexual harassment and Nelson’s work as a deputy sheriff, that is a matter lacking relevance in scope of employment analysis.” (Maj. opn., ante, at p. 1011, italics added.) This reasoning does not withstand scrutiny. It attempts to draw a distinction between foreseeability “in a negligence sense” *1036and foreseeability for purposes of respondeat superior, asserting that the former is irrelevant to the latter. But this would be true only if the difference between the two were a difference in kind; it is not—it is simply a difference in degree. There is only one kind of foreseeability, but foreseeability requires a higher level of probability for negligence purposes than for respondeat superior purposes. As the majority elsewhere correctly observe, foreseeability as a test for negligence “ ‘means a level of probability which would lead a prudent person to take effective precautions whereas “foreseeability” as a test for respondeat superior merely means that in the context of the particular enterprise an employee’s conduct is not so unusual or startling’ ” that the loss should not be borne by the employer. (Maj. opn., ante, at p. 1004, italics added and original italics deleted.) The evidence that “sexually explicit. . . horseplay” was common among coworkers in the Santa Clara County jail in 1983 and 1984 is obviously relevant to the inquiry whether such conduct was foreseeable in the respondeat superior sense.
The majority compound their error by declaring a general rule to the effect that “factors that might be relevant to whether the County itself acted negligently are not relevant to whether the County should be vicariously liable for an employee’s misconduct regardless of its own fault.” (Maj. opn., ante, at p. 1011, italics added.) This rule is inconsistent with the majority’s earlier and correct explanation that the difference between foreseeability for negligence purposes and for respondeat superior purposes is merely the required “level of probability.” And the majority’s rule is unsupported by authority. First, the majority rely on two footnotes in John R., supra (48 Cal.3d at pp. 450, fn. 9, and 451, fn. 10). But that opinion was signed by only one other justice of this court; two justices dissented on the issue, and the remaining three justices (at p. 455) “concur[red] in the majority’s [¿ic] holding,” not in its opinion. In turn, the only authority cited in those two footnotes was the second case on which the majority now rely, Hinman, supra, 2 Cal.3d at page 960. But the majority quote Hinman out of context: at the page in question, Hinman was simply explaining that the “modem and proper basis” for the doctrine of respondeat superior is no longer the employer’s “control or fault” but “the risks incident to his enterprise.” Nothing in Hinman supports the majority’s new rule that evidence of foreseeability in the negligence sense is “irrelevant” to the question of foreseeability in the respondeat superior sense.
I do not, of course, condone the offensive remarks and acts complained of in this case. But neither do I agree with the majority’s seemingly naive view of that conduct: like Captain Renault in the classic film Casablanca, the majority profess to be “shocked, shocked to find that [sexual harassment *1037was] going on”4 a decade ago in the Santa Clara County jail. I believe, rather, that in the rough-and-tumble locker-room atmosphere of that traditionally male-dominated and recently sexually integrated workplace such conduct cannot plausibly be deemed “unusual,” less still “startling.”
To hold otherwise is simply to deny reality. As Justice Kaufman has wisely observed, “Sadly, however, we have learned that sexual harassment and assaults—in the home as well as the workplace—are not uncommon occurrences. This is a hard truth to accept. But putting our collective heads in the sand will not make it go away. And clinging to a less ‘pessimistic’ view of human nature . . . will not compensate the victims of such outrages. On the contrary, indulging such illusions merely deepens and perpetuates the injustice.” (John R., supra, 48 Cal.3d 438, 464 (conc. & dis. opn. of Kaufman, J.).)
For the foregoing reasons I conclude that Nelson’s conduct at least crossed the low threshold of general foreseeability that suffices to trigger respondeat superior liability in California. It was therefore within the scope of his employment for purposes of the indemnification statute, and the trial court erred in denying plaintiffs’ motion for summary judgment.5
I would affirm the judgment of the Court of Appeal.
The foreseeability analysis of Rodgers is also quoted in extenso in both the current edition of Harper and James (5 Harper et al., The Law of Torts (2d ed. 1986) § 26.7, pp. 28-29, fn. 15) and Witkin (2 Witkin, Summary of Cal. Law (9th ed. 1987) Agency and Employment, §115, p. 110).
Again quoting from Harper and James, Rodgers also suggests another way of saying the same thing: “In other words, .'. . the inquiry should be whether the risk was one ‘that may fairly be regarded as typical of or broadly incidental’ to the enterprise undertaken by the employer. (2 Harper & James, The Law of Torts, p. 1376.)” (50 Cal.App.3d at p. 619, italics added.) The two formulations are evidently meant to be synonymous.
The majority (maj. opn., ante, at pp. 1009-1010) dismiss the quoted reasoning of Chief Judge Posner on the ground that he was discussing foreseeability in the context of the employer’s negligence in failing to stop the harassment, and “it is abundantly clear that foreseeability in the respondeat superior context is distinct from the negligence test for foreseeability.” As will appear, however, the majority misstate the “distinction” between these two uses of the doctrine of foreseeability.
(Koch, Casablanca (1973) p. 145, italics in original.)
The concurring opinion of Justice Werdegar makes in effect only one point. We agree that “ ‘foreseeability’ as a test for respondeat superior merely means that in the context of the particular enterprise an employee’s conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer’s business.” {Rodgers, supra, 50 Cal.App.3d at p. 619, italics added and original italics deleted.) We disagree on what is the “context” of the particular enterprise. Justice Werdegar construes “context” to refer narrowly to the specific duties of the employees of the enterprise. I construe it more broadly to mean “the associations or conditions of employment” (5 Harper et al., The Law of Torts, supra, § 26.8, p. 43, fn. 19). Reasonable minds may differ on the meaning of this general term. Here the most significant “association or condition of employment” was the undisputed fact that the women deputy sheriffs had been thrust into the traditionally male-dominated and recently sexually integrated work environment of the Santa Clara County jail. In that “context” Nelson’s conduct was not so unusual or startling that it would be unfair to include the loss in the county’s cost of doing business.
In her dissenting opinion Justice Kennard also agrees with me that the proper test of scope of employment for respondeat superior purposes is the “reasonably foreseeable” test of Rodgers, supra, 50 Cal.App.3d at page 619. We disagree only on whether summary judgment is the appropriate remedy on the record before us. Justice Kennard identifies two statements by deputies other than Nelson which she believes raise disputed questions of fact regarding scope of employment (dis. opn. of Kennard, J., post, p. 1041); I find the statements inadequate to discharge defendants’ obligation, in opposing plaintiffs’ motion for summary judgment, to raise a “triable issue as to any material fact” (Code Civ. Proc., § 437c, subd. (c)). I nevertheless agree that scope of employment is ordinarily a factual question, and on a proper showing I would join Justice Kennard in declaring summary judgment an improper method of answering that question.