Sexual misconduct is not acceptable in any scenario, including the workplace. Depending on the type of misconduct it may be either inadvertent or deliberate and malicious. Regardless of the motive, sexual misconduct in its many forms is illegal and can have a devastating impact on its victims. Those that think that something like this will never happen to them should be aware that sexual misconduct can happen regardless of gender, age, sexual orientation, or cultural background.
As an employee, you have a right to be protected from all forms of sexual misconduct in the workplace. That being said, it is important to understand the difference between sexual assault, sexual harassment, and sexual abuse.
Sexual Harassment
Sexual harassment can cover a broad range of situations. In California, any type of unwelcome sexual advances may be considered sexual harassment. This includes not only physical actions (unwanted touching), but also visual (sexually explicit gestures or images) and verbal actions (lewd comments or jokes) that are sexual in nature. Sexual harassment also includes actions that create a hostile, intimidating, or offensive work environment because of an employee’s sex.
Sexual harassment in the California workplace is typically seen in two different ways. The first is called “quid pro quo” where the perpetrator is usually in a position of power over the victim. “Quid pro quo” sexual harassment typically involves a superior pressuring an employee to engage in sexual activity for some type of employment benefit (e.g., pay raise, promotion, etc.). The second main category of sexual harassment is classified as a hostile work environment. This consists of any type of harassment that is either so severe or pervasive that it alters the entirety of an employee’s work environment.
Examples of Sexual Harassment
Sexual harassment can occur in many situations, but it is most often seen in the workplace or other types of professional settings. While sexual harassment may come in several forms, here are some examples of it:
- Asking personal questions about an individual’s sex life.
- Sending unsolicited texts or emails that are sexually explicit.
- Requesting or making suggestions for sexual favors.
- Touching someone without their consent in a sexual manner.
- Lewd or offensive comments about an individual’s sex life or body.
Proving Sexual Harassment
To prove sexual harassment one must demonstrate the following:
(1) the conduct was unwelcome;
(2) the conduct was severe (serious conduct such as sexual assault that can occur in an isolated incident) or pervasive (occurred over an extended period of time or was evident throughout a company);
(3) the conduct was objectively offensive (a reasonable person in your situation would find the conduct offensive) and subjectively offensive (the victim personally found the behavior offensive);
(4) the conduct resulted in actual damages which can be either economic (e.g., lost wages for missing work) or noneconomic (e.g., emotional or physical distress).
Sexual Assault (vs. Sexual Harassment)
Sexual assault is much more specific than sexual harassment. Sexual assault requires actual contact, that is sexual in nature, and occurs without the consent of the other person. There is a wide range of actions that may be considered sexual assault and can be anything from unwanted touching to rape.
Examples of Sexual Assault
- Forcing someone against their will to perform sexual acts.
- Rape or attempted rape.
- Sodomy or attempted sodomy.
- Unwanted touching or fondling of another individual’s genitals or other body parts.
Sexual Abuse (vs. Sexual Harassment and Abuse)
Distinct from both harassment and assault is sexual abuse. While often seen with crimes against minors, sexual abuse is any type of sexual act that involves the use of manipulation, coercion, or force. Sexual abuse is most often seen in situations where the victims know each other and there is a level of trust. As a result, sexual abuse usually occurs when the perpetrator and victim have a close personal or familial relationship such as a partner, friend, or family member.
Examples of Sexual Abuse
- Coercing someone to send sexually explicit videos or photos.
- Threatening to release sexual photos or videos of someone without their consent.
- Sexually assaulting someone when they are unable to consent (e.g., intoxicated or asleep).
- Coercing someone to perform sexual acts they do not want to do.
Evidence for Proving Any Type of Sexual Misconduct
Whether it is sexual harassment, sexual assault, or sexual abuse, here are some of the common ways for providing proof:
- Physical Evidence. This can include visible items such as torn clothing or scientific proof with the use of DNA.
- Electronic Evidence. Any communication (e.g., text messages, emails, etc.) between the victim and the perpetrator that either directly or indirectly confirms that the illegal conduct occurred.
- Medical Records. For instance, if the victim received medical attention for sexual assault, medical records from that visit may be used as evidence.
- This can include testimony from both the victim and any eyewitnesses to the sexual misconduct.
- Audio or Video Recordings. There are a lot of possibilities for using this kind of evidence. For instance, the victim may have recorded a conversation with the perpetrator. Or there may be a video recording of the incident by a witness with a cell phone or security camera footage.
If you are the victim of any type of sexual misconduct in the workplace or are simply looking to understand the difference between sexual assault and sexual harassment, an experienced California employment lawyer can help assist you with what you need to do next. They can help with the following:
- Investigation. An attorney can conduct an investigation to help determine what type of sexual misconduct occurred and to gather evidence to support your claim.
- Police Report/Restraining Order. An attorney can also help you take the initial steps to either file a police report or restraining order. This is essential for ensuring that the investigation is conducted properly and for keeping the perpetrator from making any contact with you.
- Handling the Claim. An attorney can help determine the best course of action and either negotiate an appropriate settlement or, if necessary, take your case to trial.
Conclusion
While there are differences between sexual harassment and sexual assault including sexual abuse, they can all have a devasting impact. None of this illegal behavior should be tolerated and should be reported immediately, whether you are the victim or an eyewitness.
However, it’s not always clear what type of sexual misconduct has occurred. Or it may be that you are not sure if what happened was illegal at all. If you believe that you may have been the victim of sexual misconduct at the workplace, it is highly recommended that you seek the opinion of an experienced attorney. They will be able to assist in evaluating and handling all aspects of your claim.
In case you’re wondering what’s your case and if you’re dealing with sexual harassment vs sexual assault or something else, don’t hesitate to book a free consultation with a JLG lawyer. Don’t hesitate to contact us directly at 818-630-7280.