Like in other states, workplace sexual harassment is a significant problem. In 2018, there were approximately 5,192 right-to-sue letters requested based on employment-related sexual harassment. If you have experienced workplace sexual harassment, you may feel isolated and alone, not knowing your legal rights, the steps to take, and how to prevent your harassment.
Employers and companies have a responsibility to offer safe working conditions. Otherwise, they may be held accountable for the behavior.
The article provides a comprehensive guide for harassment victims and answers the question, “How to deal with workplace sexual harassment.”
How Workplace Sexual Harassment is Defined
The legal definition of workplace sexual harassment covers a wide range of conduct. While unwanted sexual touching like rape is harassment, actions do not have to be that serious to be considered sexual harassment.
There are 2 (two) forms of sexual harassment, namely:
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Quid pro quo
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Hostile work environment
From time to time, workers welcome behavior from their bosses or colleagues. In this case, you cannot claim that you were harassed. Whether you welcome the advances or not might be challenging to establish. It focuses on the intent instead of outward behavior.
Understanding Quid Pro Quo Harassment
Quid pro quo harassment happens when a supervisor demands sexual favor for workplace benefits.
To prove your case, you must demonstrate that:
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You worked for the accused, applied to work with/for the accused, or offered services to your harasser
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The supervisor or any of their agents made uninvited sexual advances
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The insinuation or words on the sexual request made favorable working conditions favorable
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The harassing behavior harmed you
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The defendant’s conduct was a significant factor in the harm
As previously mentioned, quid pro quo involves exchanging sexual favors for benefits, like:
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Promotion
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Raise
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Additional working hours
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Assignment to specific projects
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Favorable working schedules
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Getting hired by the defendant
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Not terminating the worker
The sexual harassment type in question might be either implied or explicit.
There should be consequences for your refusal for it to be sexually harassing. Employers who threaten detrimental employment repercussions if a worker refuses the sexual advances should execute the threat. Otherwise, you cannot claim this type of harassment. Nevertheless, it could be a hostile environment.
Additionally, it would help if you verified a connection. You have to show how your refusal and consequences relate.
How Sexual Harassment Creates a Hostile Working Environment
Hostile environment harassment is any unwelcomed act based on sex, which is pervasive or severe. It is the most typical type of sexual harassment. It makes harassment and the work environment inescapable or inseparable.
You can have a claim if all the following statements are true:
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The Conduct was Unwelcome
In other order, you did not want the act directed at you. Also, it implies that you communicated that it is unwelcome. It can be telling or reacting in a manner that suggests that you do not like what the harasser is doing.
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The Behavior Should be Founded on the Victim’s Sex
The harassment should be directed at the victim because of their sex.
Nevertheless, if a woman harasses a man because they are putting on a blue pair of trousers, then the conduct is founded on the color of the clothing instead of the man’s gender. In this case, it is legal.
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The Harassment Should be Pervasive or Severe
The more serious the conduct, the less often it can occur. For instance, a sexual assault or rape instance is serious enough to meet this requirement. However, a person telling you that you are beautiful once does not constitute sexual harassment.
Nevertheless, should the comment become excessive, despite being non-offensive, the repetition can be considered harassment.
The harassment should go beyond just isolated, occasional, trivial, or sporadic.
Please note that harassment does not have to be sexually based on race, nationality, religion, age, and disability.
When Can Quid Pro Quo Result in a Hostile Environment?
An employer’s favoritism to one worker in return for sexual return can create hostile working conditions for other workers. For instance, the employee can get a promotion or raise that is not justified by their work performance. Other workers can claim that they are suffering due to sexual favoritism.
Who Do Workplace Sexual Harassment Laws Protect?
California has stringent sexual harassment laws. Unlike the federal law that imposes accountability for harassment only when a firm has at least fifteen workers, California sexual harassment law protects all employees. The law also protects:
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Interns, whether unpaid or paid
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Independent contractors
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Volunteers
The law requires companies with more than fifty employees to provide a two-hour sexual harassment training to supervisory team players every two years.
The employers are accountable for responding timely to sexual harassment complaints and preventing them. They should:
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Prevent sexual harassment (it can be through training)
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Protect workers reporting it
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Investigating sexual harassment reports thoroughly and timely
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Ensure victims and whistleblowers do not face negative employment actions like suspension, discrimination, demotion, or termination
Persons that Can Commit Workplace Sexual Harassment
It is a misconception that only employers and supervisors might commit it. Well, the truth is that your boss is responsible for safeguarding you from harassment from any person that interacts with you in your workplace, including:
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Business owner, boss, or supervisor — When your boss or supervisor harasses you sexually, the law deems your harassment as a behavior of the organization itself. Moreover, harassment by a colleague could be attributed to the firm should the boss or supervisor fail to resolve the matter. It can be by reassigning or firing the defendant.
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Non-supervisor colleague — A coworker can harass another on down, up, or equal level on the organizational chart. Due to the absence of power, a coworker is more likely to have a hostile environment. When a non-supervisor colleague harasses you, you should alert the firm for the organization to be responsible for the conduct. Should the firm fail to take disciplinary action, it might be accountable for your damages.
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Third-party, including customers, clients, consultants, and vendors — These are not employers of the firm. Your boss may be held accountable for harassment. Nevertheless, you need to prove that your employer knew of the harassment and did not take appropriate or immediate corrective action.
Sexual Harassment Between Persons of the Same-Sex
The issue of a female supervisor/employer demanding a sexual favor from male workers is no longer the only sexually harassing conduct the court considers. The sexual harassment laws today are responsive to the complexities of gender and sexual identities in modern workplaces.
Your Work Productivity Does Not Have to be Affected as a Result of the Harassment
You do not have to establish that workplace sexual conduct affects your work productivity.
The Fair Employment and Housing Act requires behavior to unreasonably impact an individual’s work productivity to be sexually harassing. The 2018 amendments to the act added numerous intent statements. For instance, the victim does not have to prove that their tangible performance has gone down due to their harassment. The alleged victim should instead establish the conduct has altered their working conditions, making their job challenging.
Can You Waive Your Right in Your Employment Contract?
A sexual harassment complaint can only be brought by a person who has signed a contract waiving their entitlement to disparage or sue their boss.
Your employer cannot require you to release them for responsibility for harassing conduct in return for employment, continued employment, a bonus, or a salary raise.
Any contract or agreement doing this is not enforceable since it violates public policy.
The only exemption is a negotiated settlement agreement to settle a claim or lawsuit against your boss.
Damages Awarded in a Sexual Harassment Lawsuit
Some of the compensatory damages you can recover as a victim include front pay, back pay, mental anguish, loss of your reputation, and pain and suffering.
On top of that, the court can award involved parties in the claim punitive damages, court costs, expert witness charges, and attorney’s fees. That means you can pay your employer damages if you lose your claim. Nonetheless, the latest amendments to the law allow employers to recover the damages provided the claim is frivolous.
Please note that your settlement agreement cannot incorporate a gag provision once your case is resolved. Any element of your settlement preventing disclosure of harassment details cannot be enforceable in a court of law.
How to Handle Sexual Harassment in Workplace
It is not uncommon for socializing, banter, and joking about happening in your workplace. However, when a person acts in a manner making you uncomfortable, you should indicate that the conduct is unacceptable and should stop. If the accused sees that you take the matter seriously, they might as well.
However, if the action continues, you should take further action.
Note the Conduct Down
On a personally owned device, note down information about your harassment. Remember to include the location and dates alongside the witnesses’ names. Also, request witnesses to write the occurrence’s account. Ensure your account is objective and accurate.
Collect Work Records
Sometimes your harasser might try defending themselves against the claim by attacking your job productivity and performance. When the defendant brings their issue, collect copies of personnel files and performance reviews showing your work quality as evidence of the job performance and productivity. If the organization policy does not permit making copies of the personnel files, take note of the content.
Report the Matter to the Supervisor
If the person harassing you is not the supervisor, report the behavior to your supervisor. It is essential because your employer might escape legal responsibility if you fail to inform them. Ensure you notify the supervisor in writing and include the incident’s details.
If there are any witnesses to your harassment, you can ask them to sign a statement of what they saw.
Report the Matter to the Management
If the supervisor fails to respond accordingly to the complaint or if the supervisor is your harasser, you need to report the claim to the senior management. Present your written complaint and include all documentation and evidence about the incident.
The employer should address your claim effectively and professionally using any of the following steps:
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Distributing an anti-harassment policy
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Conducting a training
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Documenting the sexual harassment claim
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Prompting investigation
How to File Your Workplace Sexual Harassment
Discussed below are different ways you can file your claim.
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Filing Your Complaint With the Department of Fair Employment and Housing
All persons seeking to bring a harassment claim in California should first do so by filing their complaint with the Department of Fair Employment and Housing Department. It initiates an investigation that requires your employer to respond.
On top of filing your claim, you should fill out a DFEH form describing the incidence. When submitting the form, you should schedule an appointment with an investigator that happens three to six months later.
During your interview, the investigator will require you to share information of what happened, including:
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Time
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Location
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Witnesses
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Dates
After filing your claim, the investigator will contact your boss to respond to your allegations.
More often than not, the agency offers mediation to the involved parties hoping to resolve the matter. If the dispute is not resolved, the DFEH will investigate the matter to determine whether the accused violated the law. If it is determined that the defendant did not violate the law, the case is closed.
If the case is closed, you can acquire a Right to Sue Letter indicating you have met the DFEH’s requirements before bringing a lawsuit.
If DFEH finds that the defendant violated the law, it can file a lawsuit on your behalf.
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Filing Your Claim with the Equal Employment Opportunity Commission
Many sexual harassment cases against employees are covered under the FEHA, and victims can file their claims with the DFEH. Nevertheless, there are exemptions when victims can only bring a claim with the EEOC.
A downside of filing your claim with the agency is that you are limited in the amount of punitive and pain and suffering damages you can recover.
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Filing Your Lawsuit With the Court
Before filing your lawsuit with the court, you should first bring your claim with the DFEH and obtain a right to sue letter. Once you have the right to sue letter, you have a year to file a lawsuit.
If you have legal representation, filing your lawsuit is the best option.
Statute of Limitations
You should file your lawsuit before the statute of limitation expires. Since the claims involve conduct in the workplace, you should first make an administrative filing.
A DFEH filing should be made within three years of the latest sexual harassment. If you learn of the conduct after three years have elapsed, you can have a ninety-day extension to bring.
An EEOC filing should be made within six months of the latest sexually harassing incident. The window is extended to three hundred days if the victim is filing their claim with DFEH.
Find Sexual Harassment Attorney Near Me
It is not uncommon for individuals in California to grumble about going to work on Monday. However, for some employees, it is because they are experiencing sexual harassment at the office. The experience can result in fear, confusion, and guilt, especially if you do not know your available options and how to handle the situation. If you have been harassed, please contact the knowledgeable legal team at Stop Unpaid Wages at 424-781-8411. We can review your case during your initial free consultation and advise you of your options and rights.
