Table Of Contents
- A Snapshot of Sexual Harassment in the Workplace
Chapter 1: Sexual Harassment in the Workplace
- What is Sexual Harassment in the Workplace?
- How the Fair Employment and Housing Act (FEHA) Protects Victims of Sexual Harassment
Chapter 2: Identifying Sexual Harassment in the Workplace
- Quid Pro Quo and Sexual Harassment
- Hostile Work Environment and Sexual Harassment
- Common Misconceptions About Sexual Harassment in the Workplace
Chapter 3: California Workplace Harassment Liability
- When Your Employer is Liable for Sexual Harassment
- When Your Supervisor is Liable for Sexual Harassment
- Faragher/Ellerth Defense and its Applicability in California
- The Doctrine of Avoidable Consequences in California
- When an Individual is Liable for Sexual Harassment in the Workplace
Chapter 4: How to Prevent Workplace Sexual Harassment
- Preventing Sexual Harassment in the Workplace
- Sexual Harassment Prevention for Employees
Chapter 5: Responding to Sexual Harassment
- What to Do if You Have Experienced Harassment
- Reporting Sexual Harassment in the Workplace
- What to Do if You Face Retaliation from Your Employer
- When You Should Consider Filing a Lawsuit for Sexual Harassment in the Workplace
- Chapter 6: Hiring a California Workplace Sexual Harassment Lawyer
- Need Help With your Sexual Harassment Case?
A Snapshot Of Sexual Harassment In The Workplace
Unfortunately, sexual harassment is all too common in the workforce, and it is often left unreported due to the lack of education on what constitutes sexual harassment and what can be done about it.
Despite required workplace training, the guidelines of what to do in response to sexual harassment in the workplace are unclear when the line between what is appropriate and inappropriate is crossed.
The consequences of sexual harassment often impact a victim in many ways, including lower productivity, shame or embarrassment, anxiety, and even depression.
Yet, sadly, the signs of sexual harassment are often unrecognized.
A poll done by Quinnipiac University showed that 60% of women had been victims of sexual harassment, and about 69% of these instances took place at work.
Another study stated that 81% of people believed that sexual harassment occurred in most American workplaces. However, 90% thought that this was not happening in their office. This may be a result of people not being able to identify sexual harassment accurately.
By being able to identify what sexual harassment in the workplace looks like, their rights as an employee, and how to properly handle the situation, people are more likely to report occurrences through the proper channels.
When employees know there are systems in place to hold co-workers and supervisors accountable, it leads to a safer work environment for everyone. When these systems fail, victims need to know the various ways they can take legal action if necessary.
Chapter 1: Sexual Harassment In The Workplace
What Is Sexual Harassment In The Workplace?
The legal definition of harassment as it relates to the workplace “is the unfair or biased treatment of a protected classification or group based on their specific characteristics.”
This is as defined by Title VII of the Civil Rights Act of 1964 and seeks to protect people from discrimination based on sex, race, color, national origin, and religion. Sexual harassment is a violation of this law. Sexual harassment creates a toxic and uncomfortable work environment and covers a wide range of acts, including:
- Unwelcomed sexual advances
- Requests for sexual favors
- Gifting of sexually suggestive items
- Graphic comments
- Rude gestures
- Impeding movement
One reason people have a difficult time identifying sexual harassment at work is that it can include situations that are not sexual in nature.
In California, sexual harassment can include offensive comments about one's sex, discussing sexual acts in the workplace, or retaliation for submitting a complaint about offensive comments or activities.
How The Fair Employment And Housing Act (FEHA) Protects Victims Of Sexual Harassment
Even though sexual harassment is already covered under federal law, further protections are upheld in California to protect workers.
The Fair Employment and Housing Act (FEHA) prevents employers from denying employment or terminating employees based on sex or gender.
This Act also puts the onus on the employer to prevent as well as correct sexual harassment to ensure a safe work environment. The employer ultimately has a duty to create a sexual harassment policy and educate employees on sexual harassment.
The main difference between Title VII of the Civil Rights Act and FEHA is that the former only applies to employers with 15 or more employees, while the latter applies to all private, state, and local employers regardless of the number of employees.
Chapter 2: Identifying Sexual Harassment In The Workplace
Under state and federal law, there are two main types of sexual harassment acknowledged. The first type of sexual harassment is the one that is most often thought of when someone thinks of sexual harassment at work, and that is quid pro quo. The second one is just as serious, and that is when the sexual harassment creates a hostile work environment.
Quid Pro Quo And Sexual Harassment
Quid pro quo translates to “something for something” and refers to the exchange of some type of compensation, whether it be a promotion, benefits, continued employment, or any other type of gain in exchange for sexual favors. This type of behavior falls under the definition of quid pro quo, whether the transaction is carried out or not. Even a single incident occurring qualifies as sexual harassment in the workplace, and there are liability provisions for it under the law.
Hostile Work Environment And Sexual Harassment
A hostile work environment refers to verbal cues and or physical actions that turn the workplace into a hostile or uncomfortable work environment. A hostile work environment does not just have to affect the victim, but it may also impact other co-workers.
This form of sexual harassment has to be so frequent and severe that it interferes with your ability to do your work, creates a toxic environment, or changes the conditions of your employment.
To prove a hostile work environment, there has to be evidence showing that the victim's ability to do their work, well-being, and physical state was impacted negatively. When being considered as an act of sexual harassment in the workplace, the claims put forward by the victim are examined to see if they would make a reasonable person offended, making this claim both objective and subjective.
Common Misconceptions About Sexual Harassment In The Workplace
It is often thought that sexual harassment is only valid between men and women, and when an incident occurs between two co-workers of the same sex, it does not constitute sexual harassment. It is also a misconception that sexual harassment must be based on sexual speech or actions.
Contrary to popular belief, sexist male-female interactions are not the only ones that qualify as sexual harassment. Sexual harassment by a perpetrator that is the same sex as the victim is also recognized as sexual harassment by the law.
When most people think of sexual harassment in the workplace, they typically conjure up images of a male supervisor preying on a female employee, but this is a false perception, and it not always the case. In 1998 the Supreme Court ruled, under Title VII of the Civil Rights act, that women can also legally be perpetrators of sexual harassment, regardless of their victim is male or female. Sexual harassment can happen between anyone, regardless of gender or their position.
No matter the situation, the key factor of sexual harassment in the workplace lies in a person's sex being the motivator for the action or behavior. For example, in the case of being terminated from your job, you would have to prove that it was done as a result of not performing sexual acts, complaining about sexist comments, or another form of sexual harassment.
It is important to note that California law dictates that sex-based discrimination is not solely based on sexual desire. Any type of discrimination based on someone's sex also counts as sexual harassment, such as pregnancy, childbirth, or other related medical conditions.
Chapter 3: California Workplace Harassment Liability
Under California law, both the employer and the individual harasser can be liable for damages caused by sexual harassment. Knowing who is responsible for the sexual harassment that takes place in the workplace could be crucial to your claims.
When Your Employer Is Liable For Sexual Harassment
According to the California Supreme Court, under FEHA, employers are strictly liable for all acts of sexual harassment by a supervisor. The employer is liable whether or not they were aware of the sexual harassment previously.
The term ‘supervisor' is not defined by Title VII; however, the U.S. Equal Employment Opportunity Commission (EEOC) defines it as someone with the authority to recommend “tangible employment actions.” The supervisor could also be someone who has a say over what the employee's daily work obligations are.
The FEHA suggests that the supervisor does not have to have complete authority over what you do at work. Legally, FEHA defines ‘supervisor' as:
...any individual having the authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend that action, if, in connection with the foregoing, the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment.
An employer is liable for harassment committed by a non-supervisory employee under certain conditions. They are liable if there is evidence that they were aware or should have been aware of the sexual harassment but did not take the appropriate corrective action immediately.
The employer is also liable for harassment by a non-employee on a negligence standard. A non-employee may refer to a vendor or a customer. The conditions by which the employer is liable is the same as the ones listed above for the non-supervisory employee.
When Your Supervisor Is Liable For Sexual Harassment
In California, there are times when a supervisor may be individually liable for sexual harassment that takes place in the workplace. For instance, if they aided and abetted sexual harassment, they could be liable for it. Aiding and abetting sexual harassment means that they were aware of it but did not take any action to stop it.
Faragher/Ellerth Defense And Its Applicability In California
You may have heard of the well-known Faragher/Ellerth defense, and you may be wondering what it is, and whether or not it applies in the state of California.
The Faragher/Ellerth defense is an affirmative defense that can be used by employers outside of California to defend claims of a hostile work environment. The name comes from the two Supreme Court cases, Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998).
This defense is provided under federal law if the employer can prove that they tried to prevent sexual harassment and immediately responded to any claims of harassment through corrective actions. In addition, the employer can use the Faragher/Ellerth defense if they can prove the employee didn't take advantage of the resources provided by the employer as it relates to the company's sexual harassment reporting protocol.
The employer can also use this defense if they can prove no tangible adverse employment action such as demotion or being assigned to an undesirable position, was taken against the plaintiff. Using the Faragher/Ellerth defense could lead to the employer being free of all liability. If successful, the employer would not have to take responsibility for the harassment because it would have been proven that the harassment would have been avoided if the victim had made use of the resources available to them.
However, in California, there is no Faragher/Ellerth defense; the employer may instead use the doctrine of avoidable consequences.
The Doctrine Of Avoidable Consequences In California
Under FEHA, the avoidable consequences defense can be used to avoid damages. The employer might use this doctrine if they did not know about the harassment with ample time to do anything about it. If the employer decides to go through with the doctrine of avoidable consequences, to avoid blame, the following three things must be proven:
- The employer took reasonable steps to prevent and/or correct sexual harassment in the workplace.
- The accuser did not properly utilize the proper channels and resources available to them to handle their complaints.
- The damages suffered by the accuser could have been avoided either in part or wholly if they had followed the procedure laid out by the employer.
The employer must also prove that they had certain resources in place that the plaintiff could have used. You can peruse what these are in the chapter titled, “Preventing Sexual Harassment in the Workplace.”
It is important to note that the doctrine of avoidable consequences never absolves the employer from liability, only damages.
When An Individual Is Liable For Sexual Harassment In The Workplace
In some cases, an individual may be held reliable for sexual harassment that happens in the workplace. California law states that “any employee of an entity subject to FEHA is personally liable for their own unlawful sexual harassment.” This means the harasser may be personally liable for any tort committed against the victim, including emotional distress, and assault.
Chapter 4: How To Prevent Workplace Sexual Harassment
Preventing Sexual Harassment In The Workplace
It is the responsibility of the employer to protect their employees at work, including preventing sexual harassment in the workplace. The employer is responsible for setting up sexual harassment policies and guidelines for their company, including training and a system of reporting. As an employer, here are steps you can take to create a workplace that is free of sexual harassment:
Creating A Policy Against Sexual Harassment
By law, the employer has a duty to make sure there is a sexual harassment policy in writing with all the categories of protected classes of people, as stated by the law, and clearly outlined. The policy should also include examples of different types of sexual harassment so employees can better identify when sexual harassment occurs in the workplace.
The employer has the responsibility of communicating this policy to its employees as well as the implementation procedures. If more than 10% of the workforce speaks another language besides English, then the policy should be translated into that language.
Several steps can be taken between the employer and the employees to sure they understand what the policies over sexual harassment in the workplace are. The employees should receive a printed copy of the policy to read, sign, and return to the employer. The employees could also receive the policy via email with an option to indicate that they have received it and understand it. The employer should also maintain a current version of the policy on the intranet that can be tracked, so there is a record of who has read it.
The employer is responsible for ensuring that all employees have read and understood the company's sexual harassment policies.
Promote An Ideal Environment
The ideal environment is one where sexual harassment is actively prevented while simultaneously encouraging sexual harassment to be reported without fear of retaliation. The employer should also strive to make the environment welcoming and accepting of anyone who would like to report an incident of sexual harassment. This sort of environment may be obtained by arming the relevant Human Resource personnel with the tools to record and document complaints. Such an environment does not punish employees for reporting sexual harassment, nor does it make them feel like there could be possible retaliation.
Get Upper Management And Leaders Involved
Employees in leadership positions or positions of authority should be utilized to enforce a workplace free from sexual harassment. They can do this by exemplifying good behavior while also trying to prevent it from happening in the workplace through their guidance and watchful eyes.
Offer A Clear System For Employees To Report Sexual Harassment
Employers need to provide a clear system by which employees experiencing sexual abuse and colleagues who see sexual harassment happening may report it without fear of retaliation. It is recommended that multiple options for reporting sexual harassment are put into place, rather than just a single system. For example, in addition to the supervisor, complaints can typically be made to specific Human Resource Personnel, other entities such as the EEOC, or a complaint hotline.
Supervisors are required to report all sexual harassment complaints or observations to Human Resources.
Along with providing employees with the proper channels to report sexual harassment, the investigative process should be outlined along with examples of corrective actions that may be applied.
Implement A Training Program
Up until recently, if an employer in California had 50 or more employees, they were required to provide sexual harassment prevention training to all supervisory employees within the first six months of the employees assuming their position.
However, recently, a new bill was signed into law that requires sexual harassment prevention training for all employers with five or more employees in California, instead of the previous 50 employee requirement. Employers have until December 31, 2019, to carry out their training to be seen as compliant for the January 2020 deadline.
The new guidelines require:
- At least two hours of training for all managerial employees
- At least one hour of training for all nonmanagerial employees
- All training has to be completed within 6 months of hiring new employees48
- Employees need to be retrained at least every two years
Ensuring that all employees are trained on sexual harassment prevention in the workplace accomplishes several goals. Not only does it help prevent sexual harassment in the workplace, but it also allows victims to protect themselves by knowing their rights and how to report any instances of sexual harassment that may occur. This training also helps the employer prove that they tool all the necessary steps to prevent sexual harassment in the workplace in the event they are taken to court.
Support Victims That Come Forward
Employers have a duty to support the victims of sexual harassment in their workplace. They can do that by protecting them against retaliation and encouraging them to step forward and report any instance that occurs. Employers should also conduct fair and thorough investigations in a timely manner. In addition to that, employers need to make sure that if the evidence does indicate that sexual harassment has taken place, the proper corrective measures are taken to correct the situation and prevent any future instances from happening.
Resolve Incidents Of Sexual Harassment Immediately
It is the responsibility of the employer to ensure that sexual harassment incidents are resolved immediately without punishing the victim. The harasser should face consequences for their actions and the situation corrected. Employers should also be on the lookout for behaviors that may create a hostile work environment and work assiduously to correct and deter these behaviors. Actions may include but are not limited to, firing the harasser or separating them from the victim.
Sexual Harassment Prevention For Employees
Preventing sexual harassment requires keeping abreast of the company's policy. As previously stated, the employer has the responsibility of creating a comprehensive policy that outlines examples of sexual harassment as well as the correct channels to report it and the kind of corrective actions you can expect.
The employer should also conduct sexual harassment prevention training which employees will have to take part in.
Chapter 5: Responding To Sexual Harassment
What To Do If You Have Experienced Harassment
If you have experienced sexual harassment in the workplace, it is crucial that you seek support even if you do not plan on pursuing it any further. It is recommended that victims seek solace in supportive family and friends. However, if you do want to report sexual harassment, you can find advice below.
Reporting Sexual Harassment In The Workplace
- Consult the sexual harassment policy provided by your workplace and follow the steps outlined in it.
- Notify your employer about what you experienced. It is your employer's responsibility to make sure that the workplace is free of sexual harassment. It is also their duty to investigate the matter and take corrective action if necessary.
- When making a complaint, you may either do it in writing or follow up with a written report about what you may have expressed verbally. You may also file a complaint via email, but you need to ensure that the receiver got the email and has understood it. Whichever method you choose, you should get confirmation that your message was clearly received.
- Record everything. Even small things that seem trivial at the time may become essential later one. Record when and where the sexual harassment occurred, by whom, the nature of the harassment and who witnessed it. Record how this incident or incidents affected your productivity and your overall wellbeing.
- Bear in mind that you can not make an audio recording of someone else without their permission. California is a two-party consent state, meaning that the person recording and the person being recorded must consent, and recording someone without their consent is illegal.
- Remember, sexual harassment complaints may be made to a complaint hotline, human resource personnel, your supervisor, and or various agencies.
What To Do If You Face Retaliation From Your Employer
If you face retaliation from your employer or even if you feel like your complaints are not taken seriously, there are a number of steps you can take.
- File a complaint with someone else. Sexual harassment complaints may be made to the California Department of Fair Employment and Housing or the Equal Employment Opportunity Commission. You only need to file with one of these agencies, not both. If you have encountered sexual harassment in the workplace, your complaints deserve to be heard and taken seriously.
- Seek legal advice. At Kingsley and Kingsley, we are lawyers with experience defending victims of sexual harassment in California. If you have experienced sexual harassment in the workplace, reach out to a lawyer who can advise you about further steps you may need to take, as well as whether or not it makes sense for you to file a lawsuit.
When You Should Consider Filing A Lawsuit For Sexual Harassment In The Workplace
Your attorney will be a great help in deciding whether or not you should pursue a lawsuit. In addition to the attorney's legal advice, you can get a "right to sue" notice from the California Department of Fair Employment and Housing (DFEH). You may then proceed with filing a civil lawsuit in California Superior Court. If successful you may recover attorney fees and cost as well as expert witness costs.
Chapter 6: Hiring A California Workplace Sexual Harassment Lawyer
If you have been the victim of sexual harassment in the workplace, you may be wondering if you should file a lawsuit, especially if your employer has improperly handled the situation. If you are considering hiring a California workplace sexual harassment lawyer to look at your case, here are some steps you need to take:
- Consult with a lawyer who specializes in workplace sexual harassment - It is best to use a lawyer who is an expert on sexual harassment in the workplace and has plenty of experience with these types of cases.
- Present your sexual harassment case - Be sure you provide any and all evidence you have been able to gather, such as notes that you have taken of the sexual harassment, names of witnesses, proof that you told your employer, and any other piece of information that you can provide. This will help you and your lawyer create a stronger case.
- File an administrative charge - A charge will have to be filed before a lawsuit can be pursued. You typically have 180 days (6 months) to file your charge from when the harassment happened. In California, there are certain circumstances that allow a charge to be file past the statute of limitations. Those details should be discussed with your lawyer. The files are charged by approaching the EEOC via various media which include: mail, online, in-person at a state or local fair employment practice agency.
- Follow your lawyer's advice - As stated previously, your lawyer is there to give you sound legal advice. They will tell you whether or not it even makes sense to pursue a lawsuit as well as outline actions you can take.
Need Help With Your Sexual Harassment Case?
If you have experienced sexual harassment in the workplace, be sure to talk to the knowledgable and experienced lawyers at Kingsley & Kingsley. We can help prove your case and defend your rights. If you work in California, contact us today at (818) 990-8300 for a free consultation.