If you have experienced sexual harassment at work, you are not alone. Let’s explore what you need to know about workplace harassment in California.
What Is Sexual Harassment in the Workplace?
Sexual harassment can take the form of verbal or physical actions like those outlined below:
- remarks or jokes that are sexually explicit, even those sent over email or text message.
- without the subject’s agreement, touching, grabbing, or other physical contact that is indicative of sexual activity.
- infringing on an employee’s personal space or impeding their movement physically.
- leering inappropriately or sexually at a coworker or their physique.
- sexually improper advances
- the encouragement of relationships, sexual or otherwise, or both.
- sexually explicit or objectionable content being distributed, displayed, or posted at work.
- being exposed to, receiving, or seeing pornography at work.
What is Sexual Harassment in California?
Employees in California should become familiar with the laws governing sexual harassment at work. One of the many beneficial reasons to do this is to break with the trend whenever it appears. Keep notice if any of the following signs occurred to you while you were at work:
- racial slurs, insults, epithets, or jokes passed on
- unwelcome touches, such as “accidental” brushes on your breast or other bodily parts; butt pats; pinching; and back rubs
- unwanted sexual advances
- sexually explicit conversations
- requests for sexual favors in exchange for employment or other benefits
- threats to reduce your hours, benefits, pay, or other employment conditions if you decline a sexual request
- termination of employment, loss of benefits, or other unfavorable outcomes following a complaint of harassment
- someone showing you or “giving” you sexually explicit cartoons, posters, or messages;
- obscene or sexually suggestive messages or invitations
- graphic remarks or sexually derogatory language;
- or someone stopping you from moving by blocking your way
In California, all of these behaviors may be regarded as sexual harassment.
Sexual harassment is prohibited on federal property, according to Title VII of the Civil Rights Act of 1964.
The California Fair Employment and Housing Act, or FEHA, is the primary sexual assault law California that forbids sexual harassment.
Both the FEHA and Title VII define sexual harassment as employment-based discrimination.
Federal and state legislation both recognize the broad categories of sexual harassment known as “quid pro quo” and “hostile work environment.”
Quid Pro Quo in Sexual Harassment:
“This for that” or “something for something” are the translations of the Latin phrase “quid pro quo.” The phrase conveys the idea of an exchange. Quid pro quo harassment therefore occurs when someone requests your assent to sexual advances or other sexual behavior before employing you, keeping you on the job, giving you a promotion, or giving you other benefits.
Quid pro quo harassment can be committed using a threat or an offer. Because it is deemed severe enough, even one incidence of this form of sexual harassment might result in culpability.
Sexual Assault in a Combative Workplace When the infringing actions are so pervasive or severe that they change your employment circumstances, unduly obstruct your job, or produce an intimidating, hostile, or offensive work environment, this is referred to as a “hostile work environment.”
Hostile work environment:
The effects of a “hostile work environment” might hurt you even if the behavior is not directed at you. One harassing incident could be bad enough to warrant its own criminal prosecution. Similar to the above, less insulting, intimidating, or hostile behavior may become unlawful even if it only occurs in a single instance.
The legal standard for determining whether something constitutes sexual harassment in a “hostile work environment” has both objective and subjective components.
A reasonable person in the victim’s position would need to find the conduct offensive, aggressive, or abusive in order for it to be judged objectively.
Additionally, the behavior must have caused the victim some sort of mental suffering. Here’s where it gets subjective.
It must be shown that the harassment interfered with the person’s capacity to perform their job tasks objectively, disrupted their mental health, or had some other negative effect on their personal well-being.
The court considers the following three things when evaluating whether the behavior was sexual harassment:
- The severity of the actions,
- The frequency of the behavior, and
- The surrounding circumstances and context.
Typically, the query is highly fact-specific in the end. Federal and state laws both recognize sexual harassment in “hostile work environments,” but how they are applied might vary significantly.
For instance, California state law applies to all private, public, and local enterprises. However, the Title VII of the Civil Rights Act of 1964 only applies to companies with fifteen or more employees. Because it is more favorable to and protective of employees, the Fair Employment and Housing Act of California is usually viewed as the more effective of the two legislative tactics to prevent sexual and workplace harassment in California.
California Fair Employment and Housing Act
The Fair Employment and Housing Act (FEHA) of California prohibits harassing employees:
“based on race, religious creed, color, national origin, ancestry, physical or mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status.” Section 12940.
(As you can see, that list covers a lot more than simply sex-based harassment; as a result, this law may also protect you if you experience other types of workplace harassment or discrimination.)
The California Department of Fair Employment and Housing, sometimes known as DFEH, is a state organization that conducts investigations and brings legal cases involving sexual harassment and other types of discrimination.
The procedural regulations of the DFEH, which can be found in Title 2 of the California Code of Regulations, provide additional guidelines regarding employers’ responsibilities to maintain a workplace free of California sexual harassment.
According to these standards, employers have “an affirmative duty to take reasonable steps to prevent and immediately address discriminatory and harassing conduct.” Section 11023.
Simply put, employers must establish a work environment free of sexual harassment as defined by California law and FEHA-prohibited employment practices.
Employers are expected to provide employees with fundamental information regarding sexual harassment (which can be readily accomplished by giving employees a copy of DFEH’s Brochure 185), as well as a policy that addresses harassment, discrimination, and retaliation prevention.
The policy must:
- Be written down.
- Make a list of every group of people who are currently protected by the law. A group of people who are protected from discrimination due to a shared characteristic is known as a “protected class.”
- Mention that the law forbids coworkers, managers, and other third parties from engaging in sexual harassment in California.
- Describe a procedure by which the employer:
- Respond to the complainant promptly while maintaining as much confidentiality as possible.
- Ensure that the complaint is investigated by qualified personnel.
- Document the investigation and track the complaint’s progress and outcome.
- Take the necessary corrective steps and ensure timely closure.
- Provide employees with the option to report incidents to someone other than their supervisor. This can be done by calling a complaint hotline, writing to an ombudsperson, or writing to the DFEH or the EEOC directly.
- Direct supervisors to notify a designated representative, such as a human resources consultant, of any complaints of harassment.
- Declare that the employer will carry out an impartial, prompt, and comprehensive investigation that affords all parties the necessary due process.
- Declare that the collected evidence will enable the investigation to draw reasonable conclusions.
- Explain that the investigation may not be completely confidential, but that confidentiality will be maintained to the greatest extent possible.
- Declare that appropriate repercussions will be taken if the investigation reveals misconduct.
- Make it abundantly clear that employees will not face retaliation for participating in a workplace investigation or filing a complaint.
The policy must also be distributed to all employees by employers.
Employers whose workforce comprises at least 10% non-English speakers at any location shall additionally provide a translation of the policy in the appropriate language.
A further set of requirements must also be met by employers employing fifty or more workers.
These companies must give all supervisory staff training on California’s sexual harassment statutes within the first six months of taking on those responsibilities.
At least once every two years, supervisors must retake the course.
Who is accountable for sexual harassment in the workplace California?
Under California law, the employer is strictly accountable when a manager or supervisor sexually harasses a subordinate. This means that if a manager or supervisor sexually harasses a subordinate, the company is responsible. However, an employer can only be held accountable for workplace harassment if they knew about the harassment (or learned about it) and did nothing to stop it. The employees who harassed the other workers in both cases, however, are personally accountable for their behavior. Employers may also be held accountable for harassment committed by customers or clients if they knew about the harassment (or should have known about it) and did not act appropriately to prevent an employee from continued harassment.
What is Legally Considered Harassment in California?
Workplace harassment in California can take many forms, including the following:
- Negative remarks or jokes that are sexual in nature
- Unwanted physical contact such as touching, patting, or blocking movement
- Unwanted sexual propositions
- Openly discussing sex or sexual acts in the workplace
- Threats against an employee if they do not accept a sexual request
- Rude gestures, conduct, or behavior toward an employee or colleague
- Leering at a coworker
- The giving or displaying of sexual items in the workplace
- Messages, comments, or invitations of any kind that are sexual
- Any actions or behaviors that a reasonable person could judge sexual and inappropriate.
Is it Hard to Prove Sexual Harassment in California?
Sadly, sexual harassment has a negative impact on the lives of thousands of people every year across the United States. Individuals who are subjected to sexual harassment in the workplace have the right to file a lawsuit against the party who is at fault for their treatment. However, navigating a claim of sexual harassment is more difficult than many people might think. In California, as in any other state, it can be difficult to prove sexual harassment because it frequently involves subjective experiences and interpretations. However, it is possible to demonstrate sexual harassment in California with the appropriate evidence and legal support.
Making a Case for Quid Pro Quo Sexual Harassment
An employee must be able to show the following if they claim their employer or supervisor has participated in unlawful quid pro quo sexual harassment:
- The victim of harassment must show that the harasser made unwanted sexual advances or engaged in other improper sexual behavior.
- The employee must show that doing the desired sexual acts was required in order to earn job-related advantages or that refusing to do so would have a detrimental effect on the job.
- The employee also has to show that the employer was at fault for the harasser. It’s possible that the harasser was a supervisor, for example, or that the employer failed to implement its anti-sexual harassment policy.
Your sexual harassment lawyer in California can help you in determining the type of proof you might need to amass to support your allegation of sexual harassment in exchange for something else. This could include witness testimony or internal communications made through channels used at work, such as email and text messaging applications.
How to prove Sexual Harassment in a Hostile Workplace?
With a few exceptions, the burden of proof for a claim of sexual harassment in a hostile work environment is identical to that for a quid pro quo:
The employee must provide evidence that they were the victim of unwanted sexual harassment.
The employee must show that the harassment was severe or pervasive enough to change the working environment (i.e., to create a hostile or abusive work environment).
The employee must show that the employer knew about the harassment or ought to have known about it but did nothing to put an end to it. Alternatively, the employer will be held responsible if the harasser is a supervisor or holds a significant position within the company.
When examining a claim for a hostile work environment, the court considers the factual evidence pertaining to the claimant’s experiences and examines whether the employee’s harassment would be regarded as offensive to a reasonable person.
A few instances of sexual harassment remedies include punitive damages, monetary compensation for emotional, mental, and psychic distress, physical harm, past and future medical expenditures, lost wages, and attorney’s fees.
Are You Suffering from Sexual Harassment at Work in California? What Can You Do if Facing California Workplace Harassment
According to the California Department of Fair Employment and Housing, victims have a year from the date of the incident to report sexual harassment and file a claim. You must obtain legal advice from a California SH attorney if you have been the victim of workplace harassment. The timing and nature of your response may have an impact on your ability to obtain damages.
Steps to Take If You’re Experiencing Workplace Harassment in California?
DO: THINK ABOUT YOUR RIGHTS
Your employer is required to take timely and appropriate disciplinary action in the case of an incident and to prevent sexual harassment in the workplace.
DO: CONFIRM THE CALIFORNIA SEXUAL HARASSMENT POLICY OF YOUR EMPLOYER
The California Code of Regulations (2 CCR 11023) mandates that employers have a sexual harassment policy and ensure that all employees are aware of it. The policy must, as indicated before, specify the process by which employees can file complaints of harassment.
DO: REPORT THE INCIDENTS
If a sexual harassment incidence occurs, you should report it as soon as possible in accordance with your employer’s policy. Record the event in writing or make a written record of your response as a result.
If you send your complaint by email, ask for a “delivery” and “read” receipt. Keep a copy of your initial complaint and any correspondence you get in the future about it.
In California, you must be as detailed as you can in your complaint regarding sexual harassment. Names of anyone who saw the occurrence should be mentioned. In the event that there were no witnesses, did you inform anyone else what happened? Who and when were they informed? Having a witness or other piece of proof to support your allegation is very beneficial to the investigators looking into it.
If bringing the issue up with your employer doesn’t help address it:
Consider seeking legal advice from our employment lawyers in our Los Angeles or San Francisco offices who can assist you in comprehending how the particulars of your case would be governed by federal and state law. Additionally, an employment law attorney can assist you in comprehending your options, filing a sexual harassment complaint in California, determining what information is relevant and irrelevant, and determining whether or not it makes sense to file a lawsuit.
What Not to Do If You’re Sexually Harassed?
There are certain actions you should not take if you are a victim of sexual harassment in California. Some of the things you shouldn’t do are as follows:
Don’t throw away or destroy evidence of the bullying:
If you receive an offensive email, text, or message, your first instinct may be to delete it. However, you should resist that urge. Your claim is supported by offensive words, images, and texts, which will be crucial in any subsequent investigation or lawsuit. As a result, you ought to keep this kind of evidence, make notes about what took place, and store them in a safe place.
Don’t put off taking action for too long:
You are required to submit a complaint to DFEH under California law within one year of the most recent act of harassment or retaliation. The amount of time you can wait to file a complaint with the EEOC is also limited. As a result, if you find that you are being harassed on a regular basis, you should act right away.
Don’t Think Retaliation is Allowed:
If you complain about California sexual harassment and your employer retaliates against you for complaining, your employer’s behavior only becomes more egregious under the law.
Do Not Accept the Following as Excuses for Inaction:
“Since he or she stated to me that they are not even attracted to you, that behavior cannot be considered sexual harassment,” Gender-based harassment, as well as harassment based on pregnancy, childbirth, or other related medical conditions, are all examples of sexual harassment.
“We can’t do anything about it because the person you are complaining about is not one of our employees.” Employers are legally obligated to prevent sexual harassment in the workplace.
“We can’t do anything because you’re just a temporary worker, intern, or contractor.” For the purposes of the sexual harassment laws in California, “employee” includes unpaid interns, volunteers, and contract service providers.
It was not directed at you but rather at your coworker. If she hasn’t voiced her displeasure, then why bother you? You can file a complaint of sexual harassment in California even if you are not the one being harassed.
Do Not Assume You are the Only Victim of the Perpetrator’s Behavior:
The conduct must be severe and/or widespread for it to be considered harassment. Someone else might find the mannerisms you think are only mildly impolite to be extremely offensive. It’s possible that the person’s actions have a much more negative effect on other people. As a result, if you feel violated or uncomfortable, you should report the behavior.
You are not alone! Reach out to us today
Make an appointment for a case review with one of the best employment law firms in California if you have any questions about your situation.
You can get in touch with us for more questions at 818-630-7280 or email us at: info@jlglawyers.com