When you accept a job, you expect to work in an environment free of any sexual harassment, but that doesn’t always happen. What starts as a new opportunity can quickly turn into a nightmare that causes you stress, nightmares and in some worst-case scenarios, being subjected to criminal acts by the harasser. Fortunately, California has strong employment laws and statutes addressing sexual harassment in the workplace.
Being sexually harassed at work is illegal. If this has happened or is happening to you, you have the right to sue those responsible. Call the employment law attorneys at The Dominguez Firm at 800-818-1818 today for a free and completely confidential consultation.
What follows is an overview of sexual harassment legislation and what you can do if you’re subjected to it at work.
What is Considered Sexual Harassment?
In California, any behavior or action of a sexual nature that creates a hostile, intimidating and/or offensive work environment based on an employee’s sex is considered sexual harassment. Under this definition, even one act can be considered sexual harassment if it is severe enough.
The law further breaks sexual harassment down into two components:
- Objective component – Anyone in the harassed employee’s place would find the circumstances to be offensive, abusive and ultimately hostile too.
- Subjective component – The harassed employee suffered emotionally from the behavior. This stress impeded their health and ability to do their job.
Note that there are two types of sexual harassment, hostile work environment and quid pro quo. A person can be subjected to one or both types of workplace sexual harassment.
Hostile work environment sexual harassment – This is defined as severe and/or pervasive inappropriate behavior in the workplace. The behavior in turn leads to a hostile atmosphere for employees subjected to it. If severe enough, it can also impact a person’s life outside of work.
- Inappropriate jokes, comments and slurs
- Displaying or sharing sexually suggestive content
- Sexually degrading comments, suggestions or invitations
- Unwelcomed sexual propositions
- Unwanted touching. An example would be repeated attempts to give the other employee a shoulder massage. So-called accidental touching can also be considered unwanted touching. An employee who brushes up against the same employee multiple times while passing them in a hallway is an example of this.
- Talking about sexual acts
- Leering and obscene gestures directed at another employee
- Offering employment, promotions, raises and other benefits in exchange for sexual favors
- Reducing hours, wages and other benefits if the employee won’t comply with a request for sexual favors
- Being fired for submitting a complaint for being sexually harassed, whether with the employer or with the state.
Quid pro Quo – This is the Latin term for “this for that”. It’s when a supervisor or higher-ranking employee offers to improve your work situation in return for sexual favors. The offer can be a raise, promotion or any other benefit. It can also be a threat. The senior employee may warn the employee that they face a reduction of hours, salary cut, or other adverse action if they don’t comply with a request for sexual favors.
Be aware that the offending employee must have the authority to make good on their promises or threats. If the quid pro quo behavior comes from a co-worker of equal standing, it’s still considered sexual harassment (hostile workplace) but not quid pro quo since they can’t directly retaliate.
One final note, if the hostile work environment doesn’t target you directly, it may still constitute sexual harassment. For example, if one or more co-workers watch pornography on their computers or make lewd comments and jokes near you, that can be considered a hostile work environment. If you find yourself in a situation like this, your best option is to consult with the sexual harassment lawyers at The Dominguez Firm to see what your options are.
Title VII of the Civil Rights Act
Sexual harassment is prohibited at the federal level under Title VIIof the Civil Rights Act. Sexual harassment was not mentioned in the original law enacted in 1964. However, in the landmark case of Meritor Savings Bank v. Vinson, the Supreme Court unanimously recognized sexual harassment as a violation of Title VII.
Title VII only applies to employers with fifteen or more employees. However, if you work for a small employer in California, you can take legal action because the Golden State prohibits sexual harassment from all employers, even if you’re the only employee, as detailed directly below.
California Fair Employment and Housing Act
The state of California prohibits workplace sexual harassment and considers it a form of employee discrimination, just like federal law does. Unlike Title VII, California’s sexual harassment laws apply to private, local and state employers of any size.
The California FEHA or Fair Employment and Housing Act, Section 12940 declares it illegal to “harass an employee … because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status.”
Keep in mind that California defines employees not just as hourly or salaried workers. It can also mean:
- Interns (paid or unpaid)
- Job applicants
- Persons under contract, such as freelancers
Many people think sexual harassment is male harassment of a female employee. However, it can be the other way around or between employees of the same sex. The law provides equal protection to all employees from sexual harassment regardless of their gender or gender identity.
Employers are obligated to provide an environment that is safe and free of discrimination and harassment. If there are instances of either type of conduct, they must correct the conduct promptly.
Is My Employer Obligated to Have a Written Policy Regarding Sexual Harassment?
Yes, all employers must have a written policy covering sexual harassment as well as discrimination and retaliation prevention. If the workforce consists of more than 10% non-English speakers, the policy must be translated into their native language(s).
The policy has to be in writing and list the current classes of people protected by law. The definition of a protected class is a group of people protected from discrimination due to a particular characteristic they share. These include:
- Gender identity
- Gender expression
- Sexual orientation
- Physical disability
- Mental disability
- Genetic information
- Medical condition
- Marital status
- National origin
- Military and veteran status
The policy must explain that the law forbids managers, supervisors, co-workers and third parties from sexually harassing employees. Employers are also required to outline the process if an employee files a sexual harassment complaint with them:
- Respond to the complaint in a timely manner.
- Let the employee filing the complaint know they won’t be subject to any retaliation for their action. Give the same assurances to any other employees involved in the investigation.
- Give the employee the option of reporting any incident to someone who isn’t their supervisor.
- If the complaint is regarding a supervisor, allow them to report the sexual harassment to a designated representative, such as a human resources consultant.
- Have qualified personnel investigate the complaint thoroughly and fairly for all parties involved.
- Document every step of the investigation.
- Take appropriate action based on the investigation.
- Close the investigation, also in a timely manner.
The employer isn’t required to provide complete confidentiality, although they should try to do so to the best of their abilities.
Employers also need to provide employees with basic information regarding sexual harassment. They can do this by giving all employees a copy of Brochure 185 from the DFEH.
Handing out a copy of the employer’s sexual harassment policy isn’t enough. The employer must receive confirmation from every one of their employees that they received their copy. The most common way to do this is via a printed form the employee signs and returns. Employers can also send an email with an acknowledgment return form.
All employers with 5 or more employers are required to provide an hour of sexual harassment prevention training to non-supervisory personnel and 2 hours of training to supervisory personnel once every two years. Because of COVID-19, the training can currently be conducted remotely. All training is provided free of charge by the DFEH.
Failure to provide sexual harassment training can be used against an employer if they’re sued for allowing workplace sexual harassment to occur.
When is Sexual Harassment Considered a Crime?
When it is sexual assault. Sexual assault is generally defined as sexual contact without the victim’s consent. This can be because the victim resisted or was unable to give consent.
If you are in any danger or have been sexually assaulted while on the job, do not hesitate to call 911. Your safety should be your top concern.
Examples include, but are not limited to:
- Attempted rape
- Forcing the victim to perform sexual acts
- Unwanted sexual touching
If the sexual harassment devolved into sexual assault, the victim would have two possible lawsuits, a criminal case for sexual assault and a civil case for sexual harassment. Only the state can file criminal charges against the perpetrator. In a criminal case, the punishment if found guilty is prison time. There is usually no financial compensation for the victim.
For a civil case, the punishment is financial. The perpetrator’s employer may have to provide the victim with some sort of monetary compensation. Note that even if the perpetrator is acquitted of sexual assault in criminal court, the victim still has the right to file a claim in civil court.
What Are the Most Recent Laws and Statutes Addressing Workplace Sexual Harassment in California?
Several new laws were enacted on the heels of the #MeToo movement. Governor Newsom signed multiple significant pieces of legislation into law in 2019.
This law, known as Stop Harassment and Reporting Extension (SHARE) extends a victim’s right to file a complaint with the FEHA from one year to three years. Workplace harassment is defined to include discrimination, retaliation because of an employee’s protected characteristic, including sex and gender, sexual orientation, gender identity, race, religion, age and disability.
Employers cannot require job applicants and employees to sign agreements waiving their right to arbitrate FEHA claims as a condition for employment. Furthermore, employers cannot retaliate, threaten, fire or discriminate against a current employee who refuses to sign any waiver.
Arbitration waivers were disproportionately common as a condition for employment in the food service, hospitality and retail sectors. Women are overwhelmingly represented in all three. These sectors also rank among the highest in employee sexual harassment complaints. AB 51 helps protect the rights of these employees to sue.
This bill’s focus is to stop sexual harassment in the janitorial and construction sectors. It builds on AB 1978, which was signed by former governor Jerry Brown in 2016. That bill required employee training in the prevention of sexual violence and harassment for the aforementioned industries every two years.
AB 547 tasks the Division of Labor Standards Enforcement (DLSE) with formulating said training for employers so they can satisfy this requirement. The DLSE must also create a list of organizations and peer trainers qualified in providing in-person prevention training for non-supervisory staff.
Due to the COVID-19 pandemic, the language of the bill was amended to allow for online training.
Although passed in 2018, SB 1343 was also significant. Previously, only employers with 50 or more employees needed to comply with sexual harassment prevention training in California and the training was for supervisory personnel only. This law expanded the training to employers with 5 or more employees and now includes non-supervisory personnel.
My Employer Was Unaware that I was Being Sexually Harassed. Can I Still Take Legal Action?
Yes. Employers are considered strictly liable for sexual harassment by a supervisor or the employer themselves. So, if a supervisor sexually harassed an employee, the employer is liable, even if they were unaware of the supervisor’s harassment.
One note, the victim can’t immediately file a civil lawsuit for sexual harassment. They must first take certain steps as outlined below.
What Steps Should I Take if I’m Being Sexually Harassed at Work?
All of these laws provide California residents with some of the most complete protection against sexual harassment in the workplace. However, it’s also important to follow certain steps to present the strongest claim possible.
Report the incident(s) and keep records of all correspondence
First, report every incident and keep all records of the communication between yourself and your employer. If you don’t report every instance of sexual harassment you experienced, your employer may rightfully claim you never informed them of what was happening.
Give as much detail as possible
Don’t just call your supervisor or HR representative. Provide a written account of what happened. Ask for a read receipt from the recipient of your emails. Note any witnesses to the harassment also.
If your employer fails to respond to your complaint
File a report with the DFEH or EEOC. Also do this if your employer retaliates against you for filing a complaint. You don’t have to file a complaint with both, one will suffice.
Don’t post anything on social media
It may be tempting to shame or out the person who sexually harassed you, but don’t. Nothing on social media is confidential. Defense attorneys may use this to discredit you and weaken your case. Anything you post is fair game.
Keep all evidence
Of course, it’s normal to want to erase a lewd text message or photo on your phone from the offender, but don’t. This is vital evidence needed to prove your case. Note the times and dates of when the harassment happened as well.
Hire an attorney who specializes in sexual harassment cases
Sexual harassment cases are complex and involve federal and state laws. An experienced employment law lawyer can help you file your claim and weigh your options. Large corporations have high-powered attorneys to handle their sexual harassment claims, don’t take them on by yourself.
Don’t wait to file your claim
If you’ve exhausted every official channel without success, contact an attorney and file your sexual harassment claim immediately. Waiting can substantially harm your case. Defense attorneys will question how serious your case is if you wait. Also, you may lose contact with any witnesses to the harassment.
What Could I Be Legally Entitled to as a Victim of Workplace Sexual Harassment?
When you file a civil lawsuit against an employer for sexual harassment, you have the right to recover damages (the legal term for financial compensation) for your losses. These can include:
- Emotional distress
- Back pay. This can include vacation and sick time, bonuses, stock options and the value of your health insurance.
- Attorney fees and costs
- Expert witness fees
- Any lost promotions
- Changes to the company’s policies
Although most sexually harassed employees don’t look to be reinstated, public employees sometimes do because they would lose the pensions and benefits they’re entitled to for years of service.
If the behavior is sufficiently malicious or reckless, or the employer engaged in malice, oppression or fraud, punitive damages may also be awarded. This isn’t done so much to compensate the victim but to punish and make an example of the employer.
California civil code (3294) defines what is considered malice, oppression or fraud on the part of the employer.
- Malice – “Conduct which is intended … to cause injury … or despicable conduct carried on … with a willful and conscious disregard of the rights or safety of others.”
- Oppression – “Despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.”
- Fraud – “intentional misrepresentation, deceit, or concealment of a material fact … with the intention … of thereby depriving a person of property or legal rights or otherwise causing injury.”
Federal law limits how much can be awarded in punitive damages by the size of the employer. If they have less than 100 employees, it would be $50,000. If it’s an employer with over 500 employees, up to $300,000 can be awarded in punitive damages.
Call the Sexual Harassment Lawyers at The Dominguez Firm Today
Workplace sexual harassment can completely upend a victim’s life and cause them both physical and mental harm. Studies show that some victims experience various forms of PTSD such as flashbacks and panic attacks.
If you’re the victim of workplace sexual harassment, making those responsible pay for their actions can help you find justice and closure. And you can do so without the fear of reprisals and threats from your employer. If you are fired for filing a sexual harassment complaint, you would have grounds for two lawsuits, one for sexual harassment and one for retaliation.
The workplace sexual harassment lawyers at The Dominguez Firm have been helping victims take their power back for over 30 years and we stand ready to do the same for you. Call us at 800-818-1818 for a free and completely confidential consultation today.
And you don’t have to worry about how to pay us since the court will require your employer to pay all of our attorney fees and costs if we obtain compensation for you. Also, in the unlikely event we can’t secure a settlement or verdict for you, you owe us nothing. In other words, you win or you don’t pay.
You don’t have to put up with workplace sexual harassment any longer. The Dominguez Firm can help.
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