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Sexual Harassment in the California Workplace

Even in the 21st century, sexual harassment in the workplace is still pervasive. In fact, the latest studies reveal that one in three women between the ages of 18 and 34 have been sexually harassed in their workplace. Some additional statistics related to sexual harassment in the workplace include:

  • Some women are unsure of what constitutes sexual harassment in the workplace—16 percent said they had not been sexually harassed, but when asked if they had experienced sexually explicit remarks, they answered “yes.”
  • By and large, the majority of sexual harassment in the workplace comes in the form of verbal harassment, but 44 percent say they have also encountered unwanted touching and sexual advances.
  • 75% of the women say a male co-worker sexually harassed them.
  • Thirty-eight percent of women said they were harassed by a male manager.
  • The food service/hospitality industry is the most likely to have complaints of sexual harassment at 42 percent.
  • What may be even more alarming is that of all those who have been sexually harassed in the workplace, only 29 percent actually reported the harassment, while 71 percent did not.

Quid pro quo Sexual Harassment vs. Hostile Work Environment Sexual Harassment

Although the terms quid pro quo and hostile work environment do not exist in any state statute, they comprise the two basic categories of sexual harassment. In reality, many cases involve both categories. When some term of employment is based on submission to unwelcome sexual advances or a negative consequence is threatened if sexual advances are rebuffed, quid pro quo sexual harassment has occurred.

Quid pro quo sexual harassment includes:

  • An offer of employment, a raise or a promotion in return for some type of sexual conduct or
  • A threat of a work-related punishment (a demotion, reduction in pay or termination) unless the employee agrees to the sexual demands of the supervisor.

Hostile work environment sexual harassment occurs when the work environment of the employee is:

  • Intimidating;
  • Abusive;
  • Offensive;
  • Hostile, or
  • Oppressive

The conduct must be severe or pervasive—that is, there must ordinarily be more than one instance of the offensive conduct—in order to meet the definition of hostile work environment. California courts generally consider the frequency of the offense conduct, the nature of the conduct, the number of days the conduct occurred, and the context of the harassment when determining whether it meets the burden of “pervasive.” Generally speaking, the more offensive or severe the conduct is, the less of it must have occurred to be considered pervasive. Sometimes the sexually offensive conduct is so severe that only one, or a few instances will be enough to constitute sexual harassment.

New Forms of Sexual Harassment in the Workplace

Many women feel sexual harassment has taken on new forms—rather than overtly aggressive sexual harassment in the workplace, it may be a sexual comment in a meeting or an insinuating remark via text, e-mail or Facebook. Sexual harassment is defined as unwelcome or unwanted sexual advances, any verbal or physical conduct of a sexual nature, or any request for sexual favors. More specifically, sexual harassment can be any of the following:

Physical Sexual Harassment

Unwanted touching is probably the most obvious type of sexual harassment. Other employees, co-workers, managers, bosses, or anyone else in the workplace are not allowed to touch another person in the workplace if that touch is based on a sexual attraction or the person’s sex. Physical sexual harassment can become confusing in some instances—patting a co-worker on the shoulder as a form of saying “good job,” or as a comforting gesture is not a form of sexual harassment unless the gesture was unwanted by the other person and was accompanied by other forms of sexual harassment.

Touching another person’s genitals or rubbing against another person in a sexual manner are overt cases of sexual harassment, however the harassment must be considered pervasive. The California Court of Appeal held that two separate incidents in which a supervisor rubbed his arm against a woman’s breast in the workplace were not sufficient to establish sexual harassment.

Verbal Sexual Harassment

Verbal sexual harassment can include e-mails, texts or other written forms of harassment. Under the umbrella of verbal sexual harassment, are “epithets, derogatory comments or slurs,” which demonstrate hostility toward a protected group are prohibited. Comments, whether verbal or written which use demeaning, gender-specific terms are considered sexually harassing. Any type of derogatory language which is specifically directed at women, constitutes sexual harassment. Men can also experience sexual harassment in the workplace, however it is far less common.

Visual Sexual Harassment

Under California employment rules, “derogatory posters, cartoons or drawings,” based on sex are prohibited. To reach the level of sexual harassment, such images must be targeted at the victim or a specific gender. These visual images must be pervasive, unwelcome, severe and either of a sexual nature or of a hostile nature, based on gender. It is worth noting that an employee who requests that sexually graphic e-mails or texts be sent cannot later claim sexual harassment.

Unwanted Sexual Advances

California regulations specifically prohibit unwanted sexual advances and comments—even if sexually related comments are not directed at a specific employee (yet are still unwelcome). California courts have historically favored the alleged victim, adopting the view of whether a reasonable person of the same gender as the victim would consider the comments pervasive or severe.

This means the term “unwelcome” is interpreted from the victim’s standpoint—the alleged harasser might not be aware their comments or behavior was unwelcome, yet those comments and behaviors could constitute sexual harassment. Telling sexually explicit jokes, repeatedly engaging in sexually implicit comments with double meanings, or even bragging about sexual exploits can all be considered sexual harassment.

When a Supervisor or other Person with a Higher Level of Power Engages in Sexual Harassment

Within the workplace, there are people with varying levels of power. In some situations, when a supervisor makes a sexual comment, a sexual advance, or asks for sex from a subordinate employee, it would be easy for that employee to believe their acquiescence to the behavior was a condition of their continued employment.

Supervisors are rarely bold enough to specifically make engaging in sex with them a condition of employment; therefore, it is generally implied rather than stated outright. While it is still unlawful, whether stated outright or implied, it may be more difficult for the victim to prove sexual harassment when the threat is implicit.

Laws Governing Sexual Harassment in the Workplace

Under California Government Code Section 12940(k), an employer must take all reasonable steps necessary to prevent discrimination and harassment from occurring in the workplace. California employers are bound by the Fair Employment and Housing Act (FEHA), which prohibits sexual harassment in the workplace as well as the Federal Title VII of the Civil Rights Act of 1964. Generally speaking, FEHA provides greater protection for employees who are victims of sexual harassment in the workplace than the Civil Rights Act.

Who is Liable for Sexual Harassment in the Workplace?

Individuals who engage in sexual harassment in the workplace may be held liable, as well as the business itself—meaning both can be sued and made to pay money to the victim. Co-workers, supervisors and employers can all be held liable in a sexual harassment case, which is an excellent reason for employer to ensure no sexually harassing behavior occurs in their workplace.

The employer can be liable if he or she was aware of the sexually harassing behavior and/or the employer did not take preventative measures prior to the harassment or while the sexual harassment was taking place. An employer has a duty to and an obligation to conduct workshops and/or distribute educational materials to their employees regarding the laws governing sexual harassment. Employee handbooks should address the procedures for dealing with sexual harassment. Even individuals who are “aiding and abetting” in the sexual harassment can be sued for sexual harassment.

Compensation Victims of Sexual Harassment May Be Entitled to Receive

Victims of sexual harassment in the workplace may be entitled to:

  • Compensatory damages, including payment for the loss of employment, past and future benefits, medical damages, back pay and front pay.
  • The emotional distress suffered by the victim of sexual harassment may be compensable in the form of emotional distress damages (The largest emotional distress awards in workplace sexual harassment cases have come out of the state of California).
  • Victims of sexual harassment in the workplace may be entitled to attorney fees and associated costs.
  • Depending on the nature of the conduct and who was engaging in it, punitive damages may be awarded, but only if the victim’s employer, co-worker or supervisor is found guilty of malicious conduct, oppressive conduct or fraud. 

What to Do if You’ve Suffered Sexual Harassment in the Workplace

If you are the victim of sexual harassment in the workplace, there are certain steps you must take in order to help your attorney build a solid case on your behalf. These include:

  • Keep meticulous notes which document any type of offensive, unwanted conduct in your workplace;
  • Report sexually harassing behaviors to the human resources department or your direct supervisor and back it up with email; it is important to make sure there is a written record of your complaint-this will protect you and avoid the employer making the “we didn’t know” argument;
  • Follow the procedures outlined in your employee handbook;
    • If your employer provides no assistance or guidance, contact an attorney immediately;
  • Hire an attorney as early as possible;
  • If the sexual harassment is constant and pervasive, consider transferring to a different department if this is an option, finding a different job or resigning but discuss this with your attorney as it could have a negative impact on your legal rights, and
  • Make sure you ask your attorney about the statutes of limitations or time limits for bringing your lawsuit.

Having a lawyer by your side during this difficult time can allow you to be at ease regarding the legal progression of your sexual harassment case. Your attorney will ensure your rights are fully protected and will answer any questions you have regarding your lawsuit.

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