SEXUAL HARASSMENT

Under California law, in order to establish sexual harassment, it is necessary to prove that the conduct is severe or pervasive and that it affects an employee’s ability to work. This is what is known as a “hostile work environment.” It is not necessary that you be the target of the behavior. Repeatedly witnessing inappropriate actions and comments can cause the work environment to be hostile.

Another form of sexual harassment is known as quid pro quo. To put it simply, this is a situation in which a manager, supervisor, or other superior promises a raise, bonus, or career advancement in exchange for sexual favors. The opposite situation may also occur, in which the person in a position of power threatens demotion or other consequences if these favors are not provided.

It is important to understand that if a coworker is touching you or making comments of sexual nature, you should make every effort to make sure the coworker knows that this conduct is unwelcomed.

In most sexual harassment cases we see, there is a pattern of behavior and ignored complaints. Employers may be held strictly liable under California law for sexual harassment by a supervisor if they fail to take prompt corrective action following a report of harassment.

What should I do if I think I have been sexually harassed?

If you think you have been sexually harassed, there are important steps to take to protect yourself and your career.

In many cases, speaking directly to the harasser and clearly stating the conduct is unwelcome is enough. In cases of subtle harassment, the perpetrator may not be aware their behavior has crossed a line or is unwelcome.

However, if you feel directly addressing the unwanted sexual conduct will jeopardize your career or safety, you may speak to someone in a position of authority, like a supervisor or an HR representative.

It can be helpful to review your employer’s policies on sexual harassment and follow the reporting procedures. Addressing sexual harassment through the internal process may not stop the behavior, but it is necessary.

Most organizations have built-in sexual harassment policies to aid them in legal disputes. Sexual harassment lawsuits can be expensive when plaid out in court. Company policies help prevent, address, and resolve sexual harassment complaints before they become more significant legal matters.

If a victim of sexual harassment fails to notify a manager, perpetrator, or HR, it can be challenging to establish a case.

If you feel reporting the unwanted sexual conduct will negatively impact your career, it is important to know that retaliation is prohibited by federal and state laws.

Another critical task is collecting evidence as soon as the harassment begins. This may be as simple as recording the time, date, and description of events in a logbook or calendar. If the sexual harassment continues or escalates despite following internal procedures, keep track of the events, who you have reported the unwanted behavior to, and what steps the company has taken to resolve the problem. In addition, collect any memos, emails, texts, recordings, witnesses, or other victims willing to share their experience.

I feel uncomfortable around my co-worker. How do I know if my co-worker’s conduct qualifies as sexual harassment?

Feeling uncomfortable around a co-worker can make work-life stressful. Knowing if your colleague’s conduct qualifies as sexual harassment is essential to stopping the behavior in the appropriate manner.

Organizations typically have policies regarding unwanted behavior. As discussed above, it is important to follow the proper procedure to stop the behavior and protect your credibility.

Many employees are uncertain if the unwanted conduct they experience in the workplace qualifies as harassment, sexual or otherwise. Annoying or rude behavior may be unpleasant, but it may not meet the criteria for legally defined harassment.

According to the EEOC, sexual harassment occurs when the conduct:

• Implies a quid pro quo relationship between the harasser and the victim, meaning the victim’s job, promotion, or salary is dependent on their willingness to participate in the suggested or explicitly stated sexual behavior
• Interferes with an employee’s ability to fulfill the duties of their job
• The conduct must be unwelcome, meaning the victim did not consent to actively participate in the offensive or objectionable behavior

Sexual harassment can involve a wide range of behaviors. Some of the most common unwelcome conduct includes:

• Sexual favors, looks, gestures
• Touching, cornering, pinching
• Sexual communication, verbally or digitally
• Catcalls
• Whistling at someone
• Being referred to as doll, hunk, babe, girl, boy
• Neck massage
• Personal questions about social or sexual life
• Giving personal gifts
• Blocking a person’s path
• Hugging or kissing on the cheek
• Standing too close or purposely rubbing against someone

If the behavior is consensual, it will not qualify as sexual harassment. However, the conduct can be considered inappropriate and may violate company policy.

What if my manager fires, transfers, or passes me over for a promotion after I submit a sexual harassment complaint?

If your manager fires, transfers, or passes you over for a promotion after filing a sexual harassment complaint, you may have suffered retaliation. Retaliation occurs when an employer punishes an employee for exercising their rights protected under the law. Reporting sexual harassment is protected.

Retaliation makes up most EEOC litigated cases, accounting for 55.8% of all charges filed. Common reasons employers retaliate against their employees include:

• Reporting illegal activity, or an act of whistleblowing
• Requesting leave that is protected under the Family and Medical Leave Act (FMLA)
• Filing for workers’ compensation
• Participating in an investigation by the EEOC, including testifying, giving statements, corroborating stories, or providing supporting documents
• Refusing to participate in illegal or immoral behavior
• Filing a complaint about a hostile work environment

An employer may choose any number of ways to retaliate against an employee. The most commonly cited retaliatory consequences under the EEOC involve:

• Bullying, belittling, or intimidating behavior
• Increased scrutiny to the point the employee is unable to perform the duties of their job
• Attempting to make the employee quit
• Defamation of character by spreading rumors or lies with the intention of causing harm
• Threats, including the threat to report a person’s immigration status
• Demoting the employee so they lose their status, salary, or benefits
• Dismissal from employment
• Exclusionary tactics, including social ostracizing, exclusion from meetings, and work events
• Reassignment of duties, responsibilities, or relocating the employee to a different workplace team to cause hardship
• Reducing wages by reducing overtime, hours, or their salary
• Termination of employment

It is crucial to gather all pertinent evidence to establish that your employer fired, transferred, or passed you over for a promotion due to a complaint.

What if I am sexually harassed by a client, vendor, or non-employees at my workplace?

If you are sexually harassed by a client, vendor, or another non-employee, your employer has certain obligations for keeping you free from discrimination or harassment. When the harasser is not a direct employee, it is referred to as third-party sexual harassment. The term may apply to an independent contractor, customer, and delivery driver, among others.

According to the EEOC, an employer can be held responsible for third-party sexual harassment when:

• The harasser is on the premises
• They knew the sexual harassment was taking place and failed to investigate or provide the appropriate corrective action

Employees have the right to file sexual harassment complaints about third parties with their employer. When a company fails to take action, it is held as liable for a third-party’s actions as an employee.

Employers can exercise their duty to protect in the following ways:

• Conduct a thorough, discreet, and respectful investigation into the claim
• Prevent future sexual harassment by:
  • Separating the employee from the harasser
    • For example, if the employee is a receptionist and the perpetrator is a vendor, an employer may request a different vendor, change suppliers, or have someone else accept deliveries from the vendor
  • Directly telling the harasser to stop or not to return to the premises
  • Give the employee the option to work where they will not have contact with the harasser

If you are sexually harassed by a third-party, your employer has an obligation to provide you with a safe, discrimination and harassment-free workplace.

A first step toward resolving any workplace difficulty is to talk to human resources or a supervisor if something inappropriate is going on at work. This can be the most effective way to address the situation and to put an end to the behavior. Sometimes, however, employers refuse to act. In other cases, reporting harassment to a supervisor could be problematic, or your supervisor may be the harassing party. Under these circumstances, you should contact an attorney who can guide you in protecting your rights and pursuing legal action to stop the harassment.

Litigation is almost always a last resort in these cases. Ideally, your lawyer can help assist you to ensure that your employer take the necessary corrective action. If your employer fails to respond appropriately, we have the skill and experience to fight for your rights in court.

How do I move on with my life and career after being sexually harassed at work? 

Moving on with your life and career after being sexually harassed can be overwhelming. Sexual harassment has received wider recognition in the media over the years. Victims have stepped forward to share their stories, shedding light on the profound and lasting impact of sexual harassment.

According to the EEOC’s Study of Harassment in the Workplace, 25% to 85% of women reported being sexually harassed at work. The high variability is explored in the research, concluding:

• Study participants respond differently depending on the definition of sexual harassment. If the term is used broadly, only 1 in 4 acknowledged being harassed.
• The percentage of reported harassment had a positive correlation to a narrower definition of sexual harassment.
• The highest percentage of reported abuse occurs when women are asked if they have experienced specific situations without mentioning the term “sexual harassment.”
• The study infers that most women do not perceive most unwanted sexually based conduct as sexual harassment. This supports the theory that sex discrimination is systemic and embedded in workplace culture, leading to a new hypothesis to prevent workplace sexual harassment.

Women are not the only targets of sexual harassment, but the high variability in the above percentages can reasonably indicate that other victims may suffer from systemic unwanted sexual behavior.

Moving on after experiencing sexual harassment is a mental health concern. Every affected person has an individual experience and background, requiring coping mechanisms as unique as their story.

Two consenting colleagues whose ended relationship has caused one to harass the other during working hours will have a different impact than a transgender woman who is subjected to ongoing ridicule and exclusion from work-related networking events.

Mental health therapists employ numerous strategies for survivors of sexual harassment, including:

• Problem-based coping strategies, where applicable
• Stopping passive strategies where a person is likely to be revictimized
• Build reframing techniques and emotional support strategies

Coping with the aftermath of sexual harassment is a very personal process that will likely take time.

With more than 30 years of employment law experience, our lawyers know how to work through the intricacies of the California Labor Code, the federal Fair Labor Standards Act and other applicable law. To get started, arrange a confidential consultation by calling (916) 446-2000.