Harassment of any kind is never acceptable, but sexual harassment in the workplace can be especially toxic. Sexual harassment in California takes many forms and can cause real trauma.
Sexual harassment is sex discrimination in the workplace. It occurs when an applicant or employee is harassed on the basis of their sex. This includes harassment that is sexual in nature as well as behavior that is offensive in regards to a particular sex in general. Under the Fair Employment Housing and Employment Act (“FEHA”), it is illegal for employers of 5 or more employees to sexually harass an employee, applicant, or unpaid intern.
While sexual harassment generally conjures up an image of a male harassing a female, in reality, it can also be a female harassing a male, or a person harassing another person of the same sex. Keep in mind, to be considered harassment, the behavior must be more than a simple offhand, isolated comment. Harassment occurs frequently or is so severe that it results in the harassed individual being forced to work in an offensive or hostile work environment.
In addition, it can be considered sexual harassment when the harassed individual is fired, demoted, or passed over for promotion as a repercussion of the harassment.
Harassing conduct may include, but is not limited to:
- Verbal harassment, such as obscene language, demeaning comments, slurs, or threats, or;
- Physical harassment, such as unwanted touching, assault, or physical interference with normal work movement or;
- Visual harassment, such as offensive posters, objects, cartoons, or drawings, or;
- Unwanted sexual advances
As the above suggests and according to Title VII of the Civil Rights Act of 1964, two basic types of sexual harassment exist:
- Quid pro quo sexual harassment occurs when a superior or someone in a position of authority (e.g., manager or supervisor) asks for unwanted sexual favors or an inappropriate relationship in return for a promotion, pay raise, a promise not to fire, or other on-the-job benefits; or
- Hostile work environment occurs when employees are allowed to make crude jokes, share pictures or content of a sexual nature, make sexual comments, or other similar behavior to co-workers, thus, creating a hostile work environment
Is the Employer Liable for Sexual Harassment?
To start the process to uncover the answer to this question, you should ask other questions, like:
- Was the sexual harasser a person in a supervisory position to the victim?
- Did the harassment result in a hostile work environment?
- Did the employer have control over the employee committing the harassment?
- Did the employer know or should it have known about the harassment and failed to take prompt and proper corrective action?
- Did the victim suffer an employment loss, such as being fired or demoted?
- Was anyone in the company aware of the harassment, like a supervisor or someone in human resources?
- Does the employer make each employee attend training on sexual harassment?
- Are there employer policies in place to prevent sexual harassment?
- Are sexual harassment prevention policies implemented and executed?
Whether or not the employer is liable will come down to who, what, where, and when. In California, an employer is “strictly liable” for acts of sexual harassment committed by an agent or supervisor. (See California Government Code §12940(j)(1).) Therefore, finding fault – like the above questions are meant to do – is not necessary.
What Are Employee Responsibilities to Prevent Sexual Harassment in California?
Employers are not the only ones that need to be proactive to prevent sexual harassment. Employees must also be active and vigilant to promote a healthy, non-hostile work environment. They can do this by familiarizing themselves with the employer's policies on sexual harassment and complying with the mandated rules. They should also remain aware of their surroundings, being watchful of harassment against themselves and others. When sexual harassment occurs, the employee should make it clear to the harasser that they find their conduct offensive and ask them to refrain from such behavior in the future. Also, when a co-worker has been the victim of sexual harassment, it is important that others show them support in their actions to stop the harassment.
What Should Employees in California Do if Sexually Harassed in the Workplace?
When an employee feels that they are the victim of sexual harassment, they are not without recourse. A few important steps should be taken to protect your rights.
- Keep a record. An employee who has been harassed should keep detailed records of the harassment, including where and when it happened as well as the name (or names) of the abuser(s). Detailed notes are important. If litigation occurs in the future, it is helpful to have the notes to jog memories.
- Report the harassment. Employees should immediately report the harassment to their supervisor or a member of human resources. It is then in their hands to investigate and take appropriate action.
- Speak to an attorney. If reporting the harassment does not resolve the issue, the employee should speak with an attorney that handles sexual harassment claims.
In sexual harassment cases, time is of the essence. There are limits on how long an employee has to file a complaint for harassment. The clock starts ticking after the last incident of discrimination occurs. Time limits are dependent on state and federal claims.
- State complaints. Each state has its own statute of limitations, so if you are filing a state-based complaint, you should make sure with your attorney what the deadlines are. In California, employees have three years to file a complaint alleging sexual harassment or discrimination in California. This is the statute of limitations under Assembly Bill No. 9, which went into effect on January 1, 2020. Three years is the maximum amount of time that you have to file your sexual harassment complaint with the California Department of Fair Employment & Housing (“DFEH”). The DFEH is the government agency in charge of investigating and resolving workplace sexual harassment claims.
- Federal complaints. If you are filing a federal complaint with the Equal Employment Opportunity Commission (EEOC), you need to file a charge within 180 calendar days from the last day the discrimination took place. This time limit can be extended to 300 days if a state or local agency enforces a law that also prohibits sexual harassment in the workplace.
Remedies for Sexual Harassment Cases in California
There are a number of remedies that may be available to you if you have been the subject of sexual harassment in the workplace. Three potential and important remedies include:
- Compensation. If you prove your sexual harassment case, you are entitled to compensation. The extent of compensation depends on a number of factors, including but not limited to the presence and extent of emotional distress, loss of wages, lost professional opportunities, medical expenses (like those for psychological care), and the nature and degree of the harassment (verbal versus physical).
- Opportunities. If you lost a job or professional opportunity, that job or opportunity could be offered or provided again.
- Alterations. Your employer should make sure your workspace is safe. This can include anything from improved training to the removal of the harasser.
Contact an Employment Law Attorney in California Today
It is critical to consult a sexual harassment lawyer as soon as possible after you have experienced sexual harassment, retaliation, or any other type of discrimination in the workplace. As time goes by, witnesses may forget details and deadlines will expire.
At the Law Office of Catherine Chukwueke, our employment law attorney will provide legal guidance and, if necessary and beneficial to you, file a sexual harassment complaint in California. Contact us today by filling out the online form or calling us at 310-213-7711 to schedule a free consultation.