In the state of California, the Fair Employment and Housing Act protects employees from sexual harassment in the workplace. There are two types of workplace sexual harassment that are forbidden under the law. Quid pro quo sexual harassment is when a subordinate is offered perks and benefits in exchange for sexual favors. Hostile work environment sexual harassment is when employees are subjected to unwanted comments and actions that are sexual in nature and negatively impact the work environment.
What is Sexual Harassment in the Workplace?
Sexual harassment in the workplace is considered a form of sex discrimination and is therefore a violation of the Civil Rights Act of 1964. Workplace sexual harassment is not always physical. It may be verbal or visual as well. It is important for employees who are being sexually harassed to make it clear that the conduct is unwelcome.
There are two factors that are considered when legally defining workplace sexual harassment.
- The objective component is the reasoning that anyone subjected to this conduct would also be offended or uncomfortable.
- The subjective component is the evidence that the harassment had a negative impact on the employee’s mental health and job.
Types of Sexual Harassment in the Workplace
What is Quid Pro Quo Sexual Harassment?
Quid pro quo sexual harassment in the workplace occurs when an employee is offered employment perks in exchange for sexual conduct or threatened with adverse employment action if they do not comply with sexual conduct. There are several things that an employee would need to prove when they claim quid pro quo sexual harassment:
- That the plaintiff was an employee, prospective employee, or someone who provided services for the defendant
- That the defendant or one of their agents made unwanted sexual advances or requests
- That compliance with those requests determined the plaintiff’s work conditions
- That the plaintiff suffered some kind of harm as a result
- That the accused was substantially responsible for causing that harm with their actions.
The employee must be able to establish a causal connection between their refusal to comply with sexual advances and some kind of negative consequences to their employment. If there are no actual consequences as a result of the employee’s refusal, then the situation would not be considered quid pro quo harassment, but may fall under hostile work environment harassment.
What is Hostile Work Environment Sexual Harassment?
A hostile work environment is caused by behavior that creates a work environment that is hostile, offensive, or intimidating. When unwanted sexual conduct creates this environment or has an adverse effect on an employee’s health or job performance, it is considered hostile work environment sexual harassment. This conduct can be:
The behavior does not need to be aimed at a particular person in order for that person to be affected by it, but it does need to have caused some extent of real emotional distress. The two main factors when examining hostile work environments are severity and pervasiveness. It must be such that any reasonable person would be similarly affected in the same situation.
Examples of Sexual Harassment in the Workplace
Most people are familiar with the more blatant forms of sexual harassment such as:
- Sexual or sensual physical contact
- Propositions for sexual activity
- Sexually threatening behavior
- Sexual or vulgar gestures
- Offers or threats based on sexual acts
However, there are also many forms of less overt behaviors and actions that are also considered sexual harassment such as:
- Repetitive non-sexual physical contact
- Jokes that are sexual in nature
- Posting or sharing sexual or sensual pictures
- Asking someone about their sex life
- Talking about one’s own sex life
- Commenting on someone’s attractiveness
- Commenting on someone else’s attractiveness
- Sending messages that are sexual in nature
- Spreading rumors that are sexual in nature
- Giving someone sexual or romantic gifts
These actions must be unwanted, repetitive, and cause some level of emotional distress. It also must be severe enough that any reasonable person would feel similar distress in the same situation.
What Federal Laws Protect Against Workplace Sexual Harassment?
Sexual harassment is legally considered a form of sex discrimination and is therefore prohibited by The Civil Rights Act of 1964. While this federal law only applies to employers with 15 or more employees, your individual state may have its own laws as well.
The law itself does not apply to coworkers, but rather employers. However, it does hold employers responsible for allowing or failing to stop the harassment. An employer must take appropriate action to put a stop to sexual harassment if they are aware of it or should reasonably be aware of it. If an employee reports to their employer that a coworker is sexually harassing them and the employer does nothing, then federal law gives that employee the right to sue their employer, but not their coworker.
It is also prohibited for an employer to retaliate against an employee for making any claim or report of sexual harassment, or for participating in an investigation, or assisting with someone else’s claim by providing evidence or witness testimony. An employee may face adverse employment action such as demotions, pay cuts, loss of hours, an increase in hostile work conditions, or even termination. If this occurs, the employee may have a claim for retaliation.
What California Laws Protect Against Workplace Sexual Harassment?
The state of California has many employment laws that go beyond federal guidelines. The Fair Employment and Housing Act not only forbids employers from sexually harassing their employees, but also requires them to prevent and put a stop to any sexual harassment in the workplace. The FEHA applies to all employers regardless of how many employees they have or whether their workers are employees or independent contractors. If an employer in California has more than five employees, they must also have their employees complete a sexual harassment prevention training course every two years. Employers with fifty or more employees must also provide additional training for supervisors.
Employers must also have their own written policy explaining the law, who is protected by it, and how an employee may voice their complaints beyond their supervisors. All employees must be provided with a copy of this policy and if 10% or more of the employees speak a language other than English, the policy must be provided in that language as well. The policy must specify how the company will respond to complaints, how the complaints will be investigated, and what action will be taken to resolve the matter. The policy must also protect the employee’s confidentiality as much as possible and ensure that the employee will not face any retaliation as a result of their complaint.
New California Sexual Harassment Laws
In 2019, California Governor Newsom enacted four new laws regarding workplace sexual harassment:
- AB 9 – The Stop Harassment and Reporting Extension law extended the FEHA statute of limitations for filing complaints from one to three years.
- AB51 – This law prohibits employers from requiring the waiver of an employee’s right to arbitrate claims with the FEHA in order to receive or continue employment. If the employer does give the option of signing such a waiver, they may not retaliate against anyone who refuses to sign.
- AB547 – An addition to AB 1978 from 2016, this law concerns custodial and construction jobs. It specifies the requirements for sexual harassment prevention training.
- SB 1343 – This law was passed in 2018, however it belongs in the same category as the others. Before this, employers only had to provide sexual harassment prevention training if they had fifty or more employees, and even then, only to those in supervisory positions. This law lowered the requirement to five or more employees and extended to non-supervisory staff as well.
Who Can Be the Harasser in the Workplace?
Anyone can be the perpetrator or victim of sexual harassment. Employees may face sexual harassment at work from all types of people:
- Both men and women
As the employer themselves would be the ones held responsible for taking reasonable measures to protect employees from sexual harassment, the identity of the perpetrator may be important.
Supervisors, Bosses, Managers
People in supervisory positions hold decision making power over their employees. This power imbalance can be a foundation for both quid pro quo and hostile work environment sexual harassment. When the perpetrator of workplace sexual harassment is in a supervisory position over the victim, the employer is strictly liable in any resulting lawsuit regardless of any steps taken or not taken to prevent it.
Fellow employees who are not in supervisory positions over each other have less of an ability to commit quid pro quo sexual harassment, but they are more than capable of committing hostile work environment sexual harassment. In these cases, the employer can be held liable if they knew about the harassment or reasonably should have known about the harassment and did not take appropriate reasonable steps to stop it.
Sexual harassment at work may also come from people who are not part of the company such as:
- Delivery personnel
It is possible to hold an employer responsible for third party harassment, but only is it is proven that the employer knew or should have known about the harassment and did not take reasonable action to stop it. If the employer is deemed to not be liable, the victim may still file a claim against the third party directly.
Who is Liable for Sexual Harassment in the Workplace?
Different forms of workplace sexual harassment have different extents of liability. When a supervisor harasses an employee, the employer is strictly liable regardless of whether they knew about the harassment. The only time an employer may avoid liability in these cases, is if they took appropriate measures to prevent the harassment and offered remedy options to the employee which were then refused. The employer is also liable for any adverse employment action resulting from the harassment.
If an employee is sexually harassed by a coworker, the employer may be held liable if they knew about the harassment, reasonably should have known about the harassment, did not take appropriate steps to prevent harassment, and/or did not take appropriate steps to stop the harassment.
What Remedies Are Available to Sexual Harassment Victims?
There are many different ways in which a person may be harmed by workplace sexual harassment and many different kinds of losses that they may suffer. Because of this, there are many different remedies that may be available to a sexual harassment victim such as:
- Changes to company policy
- Compensation for past lost wages
- Compensation for future lost wages
- Compensation for pain and suffering
- Punitive damages
- Costs and fees accrued by the lawsuit
Punitive damages are only available in instances where the employer found guilty of malic, fraud, or oppression. They may also be awarded in situations of particularly severe acts of reckless discrimination. There are also federal guidelines in place limiting how much a company may be required to pay in punitive damages proportional to how many employees they have.
What to do if You Have Experienced Sexual Harassment
There are many options available to people who have been sexually harassed at work. Because of the unfortunate frequency with which these things occur, it is important to know how to respond and what steps to take.
- Tell them to stop – Sexual harassment is partially defined by the fact that it is unwelcome. In some cases, people may act offensively and not realize they are making others uncomfortable. In some other cases, they may know what they are doing, but will stop when confronted. Unfortunately, in many situations, the victim may not feel safe voicing their discomfort. In these instances, it may be best to avoid confrontation and speak with human resources.
- Document everything – Keep copies of every text and email conversation showing or discussing the harassment. Write things down as they happen. Keep notes of every incident with the date, time, and as many details as possible regarding who said or did what and who witnessed it. Make all reports and complaints in writing and keep copies.
- Report the behavior – Make an official detailed written complaint, preferably via email. Your company should have a specific policy or plan in place for you to follow. If not, and your company has a human resources department, they are generally the best ones to contact. If your company does not have a human resources department, you can follow the chain of command; report the perpetrator to their immediate supervisor. If there is no one in the company you can turn to, or they do not put a stop to the harassment, you can also file a complaint with the Equal Employment Opportunity Commission.
What Not to Do If You Experienced Sexual Harassment
Unfortunately, there are also many common mistakes that victims of workplace sexual harassment may make that can hurt their case.
Do not destroy evidence – In many cases of sexual harassment, there is tangible evidence such as explicit text messages and emails or lewd pictures. Because of the inherently upsetting nature of harassment, victims are often compelled to delete these messages and photos. It is important to hold on to them as they are hard proof of your claims, often with digital time and date stamps.
Do not wait – There are time limits to how long you have to take legal action. The EEOC gives you 180 days to make a claim, though in California that is extended to 300 days. The DFEH has a limitation of three years from the date the last incident of harassment occurred in which to file a claim.
Do not accept retaliation – Employers are not legally permitted to retaliate against their employees for exercising their right to file a complaint regarding discrimination or harassment.
Do not accept excuses – Employers may try to argue that there is nothing they can do for various reasons, so it is important to know the law regarding those excuses:
- That a lack of sexual attraction means it is not sexual harassment – Sex based harassment can be motivated by many things including gender, pregnancy, and disability discrimination.
- That the perpetrator is not an employee and therefore not the employer’s responsibility – Employers are legally required to ensure that their employees do not face sexual harassment in the workplace. It is their responsibility to take reasonable appropriate steps to prevent, address, and remedy any sexual harassment perpetrated by third parties.
- That the worker is not an official employee and not protected – In the state of California, sexual harassment laws protect employees, independent contractors, interns, and volunteers.
- That you cannot complain about harassment not aimed at you – Hostile work environment sexual harassment can have negative effects on anyone in the workplace regardless of who the words and actions were aimed at.
Do not assume it is just you – Perpetrators of sexual harassment often have multiple victims. Oftentimes it just takes one person to stand up and say something in order for everyone else to feel safe to come forward.
Do not downplay your feelings – Sexual harassment is often excused as being ‘just a joke’ or ‘not that bad’ and victims are blamed for making too big of a deal about it. It is important to make it clear that this behavior is not okay no matter how innocuous it is being made out to be.
Do not share details of the situation on social media – Anything you say on a public platform can be used against you. It is best practice to keep the details of the situation between yourself and your lawyer.
Do not confuse assault for harassment – Sexual assault is a criminal action that warrants a faster more severe response than sexual harassment. If you have been forced into non-consensual sexual conduct or have been the victim of sexual violence, it is important to contact the police, seek medical attention, and take steps to protect your mental health.
Should You Quit if You Experience Sexual Harassment?
There are many reasons why a person may or may not stay at a job where they are experiencing sexual harassment. The main problem with resigning in these situations is that you may lose your right to seek legal action as well as your eligibility for unemployment. There are however circumstances wherein an employee is forced to resign, and the resignation is legally viewed as a termination.
Constructive termination occurs when a workplace environment has become so intolerable that the employe has no choice but to resign for the sake of their own wellbeing. It is not always easy to prove that a resignation was a constructive termination. The employee must show that any other person would reasonably feel the need to resign in the same situation and that the employer was aware or should have been aware of the situation and either contributed or allowed it to happen.
If Reporting Sexual Harassment Doesn’t Resolve the Problem
If an employer ignores a complaint of sexual harassment, or they do not take appropriate action, the employee can also file a complaint with either the EEOCC or the DFEH. This is also an option if the employer retaliates against the employee for filing a complaint. It may also be wise to seek the help of an employment attorney. Even if the employer is not directly responsible for the harassment, it is their responsibility to prevent and/or put a stop to it and they can be held liable for failing to do so.
If Reporting Sexual Harassment Results in Retaliation
In the state of California, employers are prohibited from retaliating against employees for exercising their right to complain about harassment. This includes both employees who complain about being sexually harassed themselves as well as employees who report incidents of their coworkers being sexually harassed. Employees also have a right to avoid harassment, refuse sexual advances, and to speak up for themselves against their harassers.
There are many ways an employer might discriminate or retaliate against an employee including but not limited to:
- Being given less favorable job duties
- Being denied promotion
- Reduction in hours
- Reduction in pay
- Unfounded writeups and reprimands
- Significantly increased hostility
- Being transferred
It might not be clear that the employer’s behavior is retaliation. The law takes this into account and gives leeway to circumstantial evidence. If the adverse employment action occurred immediately after the complaint was made, there is a good argument for retaliation. The less time between the two events there is, the better the argument.
How a Sexual Harassment Lawyer Can Help
Sexual harassment attorneys can be very beneficial in helping victims seek legal action against their employers. They can help file a claim, gather evidence, and give the victim the support they need.
What Damages Can a Sexual Harassment Victim Recover?
There are many losses a victim of workplace sexual harassment may suffer and could receive compensation for:
- Lost wages – In sexual harassment cases, lost wages often come when an employee loses their job.
- Pain and Suffering – Emotional distress is a common consequence of sexual harassment. Victims may experience stress, anxiety, feelings of shame or embarrassment, damage to their reputation, and even damage to their personal relationships. The emotional damage caused by sexual harassment can be so severe as to require therapy and impede their ability to work.
- Reinstatement – While it is uncommon for an employee to want to return to the same job, the perpetrator may have been terminated or other changes may have been implemented to make them feel safe doing so. Public and government employees may request reinstatement as a way to preserve their pensions.
- Policy changes – Companies may be required to make changes to the way they handle sexual harassment and how it is reported. This may involve more extensive training for supervisors and employees, anonymous tip lines, and stricter repercussions for perpetrators.
- Punitive damages – If the employer is found to be guilty of malice, fraud, oppression, or severe reckless negligence, the court may demand that they pay punitive damages as a punishment and deterrent.
What is the Statute of Limitations for Sexual Harassment?
There are a few different time limits involved in filing a claim of sexual harassment in the workplace depending on what route you take. First you need to file a claim with either the DFEH or the EEOC.
- The California Department of Fair Employment and Housing allows victims of sexual harassment to file a claim for up to three years from the most recent incident.
- The federal Equal Employment Opportunity Commission allows victims of sexual harassment to file a claim for up to 180 days of the most recent incident. If the victim is also filing a claim with the DFEH, that time limit can be extended up to 300 days.
After receiving the claim, they will investigate the situation or issue a right to sue letter. After receiving this letter, the victim has up to one year in which to file a lawsuit. The DFEH used to have a time limit of only one year, but it was extended to three in 2020. According to the FEHA, a victim may not have to file until after the harassment ends or the victim believes they cannot make it end themselves. If the harassment ends by termination or resignation, then that date is when the clock starts for the statute of limitations.
Contact Mesriani Law Group if You Have Been a Victim of Workplace Sexual Harassment
While there are many systems in place to prevent workplace sexual harassment from happening, it is unfortunately still a common occurrence. There are many options available if you find yourself in this situation and it may be in your best interest to contact an attorney. Our sexual harassment lawyers are experienced, hardworking, and dedicated to guiding you through this difficult time and getting you the compensation that you deserve. If you have experienced sexual harassment in the workplace, call Mesriani Law Group today.
Workplace Sexual Harassment FAQs
What Is Sexual Harassment?
Sexual harassment is any behavior that is unwanted and of a sexual nature. This might involve sexual advances, jokes, inappropriate images, invasive questions, and even threats. Hostile work environment sexual harassment is when the perpetrators actions create an adverse effect on the victim’s health and their ability to do their job. Quid pro quo workplace sexual harassment is when someone with decision making power over an employee offers them employment perks in exchange for sexual favors or threatens them with adverse employment actions if they do not provide sexual favors.
What steps should you take if a person is sexually harassing you?
The first thing you should do if you are able to safely do so, is to tell your harasser to stop. Make it clear that their conduct is unwelcome and makes you uncomfortable. It is also important to document everything. Keep detailed notes of every incident and hold on to copies of every text message and email. Next, send a formal written complaint via email to your human resources department. If your company does not have a human resources department, you may send it to your harasser’s supervisor. If your employer neglects or fails to end the harassment, you can file a claim with the DFEH and the EEOC.