Sexual harassment of an employee, an applicant for employment, or independent contractor is prohibited under California and Federal employment laws.[i] Sexual harassment is explicitly illegal under the California Fair Employment and Housing Act. A majority of cases of sexual harassment involve people who cannot control their sexual impulses and desires. Typically, these people are in positions of power—like managers and supervisors—and feel as though they are immune from punishment. Alcohol is usually an aggravating factor leading to the harasser’s conduct; for example, at company social functions, conventions, or other business travel.
What is Sexual Harassment?
When we commonly think of sexual harassment, we think of inappropriate comments or touching in the workplace that it sexual in nature. The reality is that sexual harassment laws encompass a wide range of conduct, behavior, and language in the workplace. Harassment does not need to be motivate by sexual desire; it may be related to sex, gender, pregnancy, childbirth or related medical conditions.[ii]
California law even allows for an employer to be liable for sexual harassment acts that are committed by nonemployees against employees, if the employer knew or should have known of the harassment and failed to take immediate and corrective action.[iii] For example, imagine a nurse working in a hospital who is sexually harassed by a patient and reports the conduct to her superiors. If the hospital supervisors fail to take appropriate corrective action that addresses the patient’s conduct and removes the threat of harassment to the nurse, may be found liable for the patient’s harassment.[iv]
Sexual harassment may include, but is not limited to:
- Physical touching or groping that is sexual in nature;
- Requests or demands for sexual favors;
- Unwelcomed sexual advances;
- Verbal sexual harassment, innuendos, or lewd jokes
What are the Types of Harassment?
Under California law, there are two recognized forms of sexual harassment: quid pro quo and hostile work environment.
- Quid Pro Quo– or “This for That”
Quid pro quo involves tying a person’s employment, promotions, and/or fair treatment in the workplace to an exchange of sexual favors or relationship with a manager or other person in power. This may seem straightforward, however, quid pro quo sexual harassment may be in a subtle form. For example, it may be obvious where a subordinate will not be promoted unless they engage in a sexual relationship with their superior, but less obvious where a pay raise is promised in exchange for not reporting a superior to human resources for inappropriate and innuendo language.Simply put, quid pro quo relates to any circumstance where an employee is expected to give into a supervisor, manager, or employer’s inappropriate, sexual behavior and advances in exchange for preferential treatment or maintaining their employment. Commonly, victims of quid pro quo harassment are expected to stay quiet about harassment and behavior in exchange for not being terminated from their jobs.
California law allows employees to recover damages by demonstrating that their benefit of employment was conditioned on their submission to the inappropriate and unlawful behavior of their employer and/or supervisor(s).
If you believe that you have experienced quid pro quo sexual harassment by your supervisor or employer, it is important that you speak with an experienced attorney who will help you defend your employment rights.
- Hostile Work Environment
Typically, hostile work environment claims arise where an employee is forced to work in an environment of sexually explicit material or behavior. This may include sexually explicit emails, pictures, pornography, lewd and offensive jokes, or other sexually offensive behavior. Even when the material or actions are not directly targeted at you, this type of behavior has the ability to create a hostile work environment. This is not acceptable or legal under California law and is punishable.Typically, harassers and other coworkers may view their actions as harmless and that any negative reaction is an overreaction. Regardless of their own beliefs and views, discriminatory and offensive behavior has the ability to create a hostile work environment and is actionable. Even if the harassing or discriminatory behavior is conducted by a fellow coworker, or even subordinate, an employee may have the right to file a hostile workplace suit where the employer or management failed to take appropriate action against the offending behavior.
No person should be subjected to, or targeted by, offensive and discriminatory behavior and conduct that creates a hostile work environment. A hostile work environment lawsuit will ensure that the conduct, and those responsible and in positions of power, are held accountable and the environment returned to a normal state.
The following behavior may be grounds for creating a hostile work environment:
- Offensive and lewd jokes and innuendos
- Racial, sexual slurs
- Epithets and name-calling
- Physical and sexual touching, assaults, or threats
- Explicit or offensive objects, pictures, or videos
If you believe that you have been subjected to images, behavior, or other conduct that has created a hostile work environment, it is important that you immediately consult with an experienced attorney who will defend your rights and put a stop to the illegal actions conducted in your workplace.
Is Sexual Favoritism Illegal?
Sexual harassment may arise where an employer shows “sexual favoritism” by giving unfounded and unwarranted favorable treatment to employees due to a sexual relationship. Sexual favoritism may be a difficult situation to enforce because, typically, isolated instances of favoritism are not enough for action to be taken. Sexual favoritism must create a hostile work environment that is widespread and felt among other employees. In other words, the favoritism sends a message to the other employees that conveys that management views employees as “sexual playthings” or that the way to obtain promotions in the workplace is by engaging in sexual conduct with superiors.[v]
Regardless, if you and your coworkers feel as though a hostile workplace environment has been created due to sexual favoritism, it is important to consult with an experienced attorney to discuss the circumstances and any options that may be available.
What Laws Regulate Sexual Harassment?
Sexual harassment is governed and regulated by both California and Federal laws. Under the U.S. Equal Employment Opportunity Commission (EEOC), harassment that creates a work environment that a reasonable person would view as intimidating, hostile, or offensive is a “hostile work environment.” The laws governing the EEOC are governed through Title VII of the Civil Rights Act of 1964, which prohibits discriminatory and harassing behavior in the workplace on the basis of sex, gender, race, color, or creed. Under EEOC laws, sexual harassment includes sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature. However, it is important to remember that harassment does not necessarily need to be of a sexual nature; it may include offensive comments about a person’s gender. For instance, it is unlawful to harass a female employee by making offensive and derogatory comments about women as a whole.
California regulates sexual harassment and other anti-discriminatory conduct under the Fair Housing and Employment Act (FEHA). Unlike other FEHA provisions, where many of the prohibitions are applicable to only employers with a certain minimum number of employees, the prohibition against harassment applies to all employers.[vi] Under FEHA laws, every employer in California has a legal obligation to comply with sexual harassment prohibitions and prevent such conduct in the following ways:
- Employers are required to take all necessary and reasonable steps in preventing discrimination and harassment from occurring in the workplace;
- Employers are required to post regulatory information provided by the Department of Fair Employment and Housing. This aids in ensuring a sexual harassment-free workplace for employees;
- Companies that employ 50 or more employees are required to provide, at minimum, two (2) hours of classroom or other educational equivalent of the sexual harassment regulations and laws to all persons who are employed in supervisory positions;
- Employers are required to distribute information and brochures to all employees regarding sexual harassment that outlines:
- State and Federal laws prohibiting sexual harassment;
- The definition and nature of sexual harassment;
- Descriptions and examples of sexual harassment;
- How to utilize the internal policies and processes available for employees who may have a sexual harassment grievance;
- Instructions for employees to contact the Department and FEHA of instances of sexual harassment in the workplace;
- The legal protections available to employees for reporting sexual harassment or other discriminatory behavior in the workplace
How do I Prove a Sexual Harassment Claim?
Many times, people fail to take action against their employers for sexual harassment and hostile work environments because they do not believe that the allegations can be proved. For example, often time, men do not pursue sexual harassment actions because of the misconception that such harassment is only related to women. It is important to remember that sexual harassment can arise under, but not limited to, the following circumstances:
- Victims of sexual harassment may be either a man or woman;
- The harasser may also be either a man or woman, nor does the harasser need to be of the opposite sex;
- A harasser may be the victim’s manager, supervisor, an agent of the employer, an independent contractor, a coworker, or even a non-employee;
- A victim does not have to be directly targeted by the offensive conduct; a victim is anyone who is personally affected by the conduct;
- It is not required that the victim suffer actual economic injury or termination from employment in order to bring a sexual harassment lawsuit;
- The offensive conduct must be unwelcome
It is important and beneficial for you to first inform the harassing individual directly that their conduct is inappropriate, unwelcome, and must be stopped immediately. Furthermore, the actions should be reported to the appropriate supervisors or human resources department. When pursuing a lawsuit for sexual harassment, the court will look at a variety of factors; taking into account all of the circumstances involved, the nature of the sexual misconduct, and the context in which the alleged misconduct occurred. There is no “cookie cutter” approach to determining whether sexual harassment laws have been violated because courts review the allegations on a case-by-case basis.
There is a time limit for filing a sexual harassment claim in California. For administrative remedies, employees, job applicants, or former employees who may have been victims of sexual harassment must file a complaint within one (1) year to the Department of Fair Employment and Housing.
Can I be Fired for Reporting Sexual Harassment or Filing a Sexual Harassment Lawsuit?
It is illegal under both Federal and California law for a person to be fired for complaining and reporting alleged sexual harassment. This is known as retaliation. Employment laws make it illegal to fire, demote, harass, or any other forms of retaliation against both applicants and employees who file charges of discrimination, report discrimination and harassment to superiors, or for participating in an investigation or lawsuit.
Reporting unlawful behavior and conduct is a “protected activity” and prohibits any retaliation by employers against an employee. The definition of “protected activity” has expanded over recent years, as the courts have sought to provide more security and protection for employees who report employer misconduct. Under the FEHA laws, an employee must actually oppose or complain about specifically prohibited workplace practices (such as, sexual harassment or other discriminatory acts) in order to qualify as “protected activity.” Recently, however, California courts have expanded this definition to include any misconduct that the employee “reasonably” and in “good faith” believes to be prohibited even if it is not explicitly listed by FEHA.[vii] The Supreme Court of California held that an employee is protected when “the circumstances surrounding the employee’s conduct are sufficient to establish an employer knew that an employee’s refusal to comply with an order was based on the employee’s reasonable belief that the order is discriminatory,” and that the employee does not even need to report to their employer that they believe the order to be discriminatory.[viii]
This does not mean that an employee can never say anything to their employer and bring a lawsuit, but it does lower the bar as to the extent of the steps taken before the employer is “on notice” of the offensive conduct in the workplace. The laws and regulations of FEHA, together with the Supreme Court’s decision, does provide more protection for employees and places a heavier burden on employers to prevent against discrimination and harassment.
How do I File a Case for Sexual Harassment?
The first step in defending your rights is to contact your human resources department or direct supervisor about any perceived or directly received sexual harassment. It is important to ensure that these complaints are in a formal setting, with proper documentation of your claims and the responses (or lack thereof) by your employer. If your employer fails to take appropriate remedial action, it may be time to consult with an experienced attorney who will ensure that your rights are defended and that your workplace becomes compliant and safe under the law.
Sexual harassment is an emotional experience and dealing with it independently can be very overwhelming. It is important to work with a law firm that understands the physical and emotional tolls that affect victims of sexual harassment. Our attorneys have the qualifications and compassion to combat harassers, hold them accountable for their misconduct, and protect your interests and rights.
Victims of sexual harassment are never at fault; any retaliation or continued abuse is nothing more than further violations of the law. Our attorneys have the compassion, dedication, and proven experience to ensure that the persons responsible for sexual harassment are held accountable for their actions.
[i] Cal. Gov. Code § 12940(j)
[iii] See Carter v. California Dept. of Veterans Affairs (2006) 38 Cal. 4th 914
[v] Miller v. Dept. of Corrections (2005) 36 Cal. 4th 446, 451
[vi] Cal. Gov. Code § 12940(j)(4)(C)
[vii] Yanowitz v. L’Oreal USA Inc. (2005) 36 Cal. 4th 1028
[viii] Id. at p. 1048