Sexual Harassment
Harassment based on sex is prohibited in the workplace. Sexual harassment creates a hostile, offensive, oppressive, or intimidating work environment and deprives its victim of his or her statutory right to work in a place free of discrimination, when the sexually harassing conduct sufficiently offends, humiliates, distresses or intrudes upon its victim, so as to disrupt the victim’s emotional tranquility in the workplace, affect the victim’s ability to perform his or her job as usual, or otherwise interferes with and undermines his or her personal sense of well-being. Types of sexual harassment include: lewd comments of a sexual nature, sexual innuendos, sexual comments, offensive comments, unwelcome sexual advances, requests for sexual favors, inappropriate text messages, making insulting comments about someone’s gender identity or sexual orientation or asking about someone’s sexual orientation, unwanted physical conduct of a sexual nature such as inappropriate and suggestive touching, kissing, rubbing or caressing of a person’s body and/or clothing, unwanted sexual advances such as repeatedly asking for dates despite being rebuffed or asking for sexual favors, making sexually offensive gestures, remarks or facial expressions, unwelcome conduct such as sexual assault. Such harassing conduct may constitute workplace harassment and violate California law, as well as federal law.
To prevail on a sexual harassment claim, an individual must show that they were subjected to unwelcome conduct that was based on sex and was sufficiently severe or pervasive to unreasonably interfere with the work environment and create an intimidating, hostile, or offensive work environment. Whether the sexual conduct is pervasive must be determined from the totality of the circumstances. Factors to consider include the nature of the unwelcomed conduct, the frequency of such conduct and the context in which the sexually harassing conduct occurred. Under California state law, “a single incident of harassing conduct is sufficient to create a triable issue of hostile work environment if the conduct has unreasonably interfered with the plaintiff’s work performance or created an intimidating, hostile, or offensive working environment.”
“Quid pro quo” versus “hostile work environment” harassment.
The EEOC issued Guidelines stating that “sexual harassment” is a form of sex discrimination prohibited by Title VII. The Guidelines explained that sexual harassment could take the form of either quid pro quo, where an employee is expected to engage in sexual conduct to receive job benefits – such as retaining a job or receiving favorable performance review or promotion, or a hostile environment, where the sexual conduct creates an intimidating, hostile or offensive working environment. California employment law has adopted the EEOC’s guidelines.
An employer may be liable if a supervisor engages in sexually harassing conduct.
An employer is liable for the harassing conduct when the harasser is in a supervisory position or when an employer is on notice but fails to take sufficient steps to deter future harassing conduct. A “supervisor” is an individual having the authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend that action, if, in connection with the foregoing, the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment. Sexual harassment law protects the victims in such situations by binding the company’s based on its supervisors’ conduct.
An employer may be liable if it is on notice and does not stop the sexual harassment.
An employer may be liable for sexual harassment by a co-worker if it failed to take all reasonable steps to prevent harassment from occurring. It is an unlawful employment practice for an employer to fail to take all reasonable steps necessary to prevent harassment and workplace discrimination. For example, if human resources was alerted by a victim of sexual harassment about a hostile work environment, then the company has an immediate duty to respond promptly and properly to allegations of said harassment or sex discrimination that are known to it. Once an employer is informed of the harassment, the employer must take adequate steps to stop it. The measures need to include immediate corrective action that is reasonably calculated to end the sexual harassment and to deter future harassment.
Retaliating against an employee for complaining about workplace sexual harassment violates California law.
California law prohibits retaliating against individuals who report harassment, and who have filed a complaint, testified, or assisted in any proceeding regarding sex based harassment or discrimination. To establish retaliation, an employee must show that he or she engaged in a protected activity; the employer subjected the employee to an adverse employment action; and the protected activity and the employer’s action were casually connected. An employee’s formal or informal complaints to a supervisor regarding unlawful harassment or workplace discrimination is a ‘protected activity’ and actions taken against the employee after such complaints may constitute retaliation. Close proximity in time between complaints of harassment and employment discrimination and the adverse employment action creates a legal inference of unlawful retaliation.
If your rights have been violated, you may be entitled to damages.
Under state and federal law, you might be able to recover damages, such as emotional distress and lost wages. Additionally, under the FEHA as well as federal law you may be awarded punitive damages as well as your attorney fees and costs if you prevail.
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