It is illegal to discriminate or harass a person in the workplace on the basis of gender or sex. These laws cover private businesses, government agencies, and labor organizations. Each incident of sexual harassment is different, however, there are two main categories into which most cases fall — “quid pro quo” cases and “hostile work environment” cases.
“Quid pro quo” harassment typically occurs when a supervisor makes a request for a sexual favor in return for giving an employee an employment-related benefit such as a raise, a promotion, or a positive performance review. It may involve a direct or implied threat of retaliation if the employee does not agree to the request. Quid pro quo harassment can consist of a single event or numerous sexual advances or demands.
California and federal law both prohibit workplace sexual harassment. California's prohibition against sexual harassment is found in the California Fair Employment and Housing Act, California Government Code sections 12900, et seq. (FEHA), while the federal prohibition is found in the Civil Right Act of 1964. Additional clarifications regarding sexual harassment include:
- Work-related sexual harassment can take place at the workplace or in any other location, as long as it arises from the employment relationship.
- Although most quid pro quo sexual advances involve a male supervisor and a female subordinate, the law recognizes that a female supervisor may sexually harass her male subordinate and also prohibits same-sex harassment. However, sexual harassment does not have to be directed at anyone in particular if it is widespread throughout the workplace (see hostile work environment).
- The same laws also protect individuals who complain about or report sexual harassment. It is unlawful to retaliate against an individual who makes this kind of complaint or report.
Employer obligations to prevent sexual harassment
Quid pro quo harassment is perpetrated by managers and supervisors. Because the harasser is a representative of the employer, the employer often is held vicariously liable for the supervisor's actions. It is not necessary to prove that you were economically harmed by the quid pro quo harassment. It is enough to prove that your supervisor harassed you; that an aspect of your job was conditioned on your response; and the sexual request was unwelcome by you.
Your employer has certain obligations to prevent sexual harassment under California law, some of which include the following:
- Taking all reasonable steps to prevent harassment from occurring.
- Developing and implementing a sexual harassment prevention policy.
- Posting in the workplace a poster made available by the California Department of Fair Employment and Housing.
- Distributing to all employees an information sheet on sexual harassment.
An employer may be liable for sexual harassment even if management was not aware of the harassment. Under California law, employers are strictly liable for harassment by their supervisors or agents. In addition, harassers themselves may be held personally liable for harassing an employee or for aiding and abetting harassment.
Prevailing on a Quid Pro Quo Sexual Harassment Claim
Unlike a hostile environment claim, a single incident of an unwelcome sexual advance by a supervisor that is tied to receiving or maintaining job benefits may be sufficient to support a quid pro quo claim. The employer is strictly liable for a supervisor's quid pro quo sexual harassment.
A victim must show by a preponderance of the evidence that the harasser made unwanted sexual advances or directed behavior of a sexual nature to him or her as a condition for receiving concrete employee benefits and/or for avoiding adverse employment action. A “preponderance of the evidence” means that after looking at all the evidence, it is more likely than not that the claimed events occurred.
California Judicial Council Jury Instruction, CACI 2520 states that in order to prove quid pro quo sexual harassment against an employer, a victim must prove the following factual elements:
- That the plaintiff was an employee of the defendant, applied to the defendant for a job, or was a person providing services pursuant to a contract with the defendant;
- That the alleged harasser made unwanted sexual advances to the plaintiff or engaged in other unwanted verbal or physical conduct of a sexual nature;
- That job benefits were conditioned, by words or conduct, on the plaintiff's acceptance of the alleged harasser's sexual advances or conduct; or that employment decisions affecting the plaintiff were made based on the plaintiff's acceptance or rejection of the harasser's sexual advances or conduct;
- That at the time of the alleged harasser's conduct, the alleged harasser was a supervisor or agent for the defendant;
- That the plaintiff was harmed; and
- That the alleged harasser's conduct was a substantial factor in causing plaintiff's harm.
How long do I have to file my sexual harassment claim?
Two time limits apply for filing sexual harassment claims under California law. First, you must request a right to sue notice from the California Department of Fair Employment and Housing within one year of an adverse employment action. Secondly, you must file your lawsuit in state court within one year of obtaining the right to sue notice.
For instance, if you were terminated from employment on May 1, 2013 and obtained a right to sue notice on August 15, 2013 you would then have one year (until August 15, 2014) to file your discrimination lawsuit in state court.
How an attorney can help you
An attorney can advise you on your alternatives including whether the conduct you experienced in the workplace amounts to sexual harassment. An attorney can also deal with your employer in any settlement negotiations arising from your harassment allegations. The qualified California attorneys at Kingsley & Kingsley can assist you in answering the tough questions regarding your potential sexual harassment claim. Take the first step to protecting yourself and stopping this hurtful and illegal behavior. Take advantage of a free initial consultation to discuss your specific case by calling the toll free number (888) 500-8469 or clicking here to contact us regarding your case.