Posted on behalf of Arnold Law Firm
on November 29, 2017 in Employment Law Updated on February 24, 2022
Recently, sexual harassment has received extensive media coverage as high-profile politicians, actors, producers and business leaders have come under scrutiny for sexual misconduct in workplace settings. Many people have come forward recounting unwanted sexual advances, touching, propositions, and lewd comments they have endured from colleagues, supervisors and corporate officers.
Many individuals who are speaking out now initially stayed silent because they feared retaliation, job loss or career derailment if they complained about the behavior when it occurred. In some cases, they are reporting sexual misconduct that occurred decades ago.
While these victims deserve validation and support for coming forward and shedding light on this subject, not all claims are legally actionable under California law. If you are personally experiencing harassment at work, understanding your rights under California’s sexual harassment laws is an important first step in ensuring that the harassment stops and exploring whether you can be properly compensated for the emotional and physical injuries you have suffered.
What is Sexual Harassment under California Law?
The Fair Employment and Housing Act (FEHA) defines sexual harassment as “unwelcome verbal, visual or physical conduct of a sexual nature that is severe or pervasive and affects working conditions or creates a hostile working environment.” There are two types of sexual harassment:
Quid Pro Quo Harassment — Quid Pro Quo means “this for that.” It is when someone conditions a job, promotion, or other work benefit on your submission to sexual advances or other conduct based on sex.
Hostile Work Environment Harassment — Hostile work environment sexual harassment occurs when unwelcome comments or conduct based on sex unreasonably interfere with your work performance or create an intimidating, hostile, or offensive work environment. In this type of harassment, you may experience sexual harassment even if the offensive conduct is not directed at you.
One myth about sexual harassment is that it only occurs when a man in a position of power harasses a woman beneath him in the corporate hierarchy. While that is one example, there are actually many others. Men can sexually harass other men. Women can harass both women and men. And, sexual harassment does not have to stem from an employment relationship where the harasser is in a position of authority over the person being harassed. Even someone that is not employed by your company can sexually harass you and subject your employer to liability under certain conditions.
Understanding the Definition of Sexual Harassment
There are four factors in the definition of sexual harassment in California. The conduct must:
Be sexual in nature.
Be “severe or pervasive.”
Affect working conditions or create a hostile work environment.
For sexual harassment to be actionable in California, the sexual conduct must be unwelcome. The line between welcome sexual conduct and unwelcome sexual conduct is not always clear. For example, mutual casual flirting may not be unwelcome at first, but that conduct can become unwelcome if it escalates or if one of the flirters becomes uncomfortable with the behavior and wants it to stop.
In order to be sure that there is no ambiguity, the victim of sexual harassment should make it clear to the harasser that the conduct is unwelcome. That means you should either tell the harasser to stop directly or tell your supervisor or the Human Resources department at your company that you believe you are being harassed and why.
Sexual in Nature
The conduct must also be sexual in nature. Sexual conduct that may constitute sexual harassment in the workplace includes:
Offering employment benefits in exchange for sexual favors;
Unwanted sexual advances;
Derogatory comments, epithets, slurs or jokes;
Physical touching or assault, as well as impeding or blocking movements;
Leering; gestures; or displaying sexually suggestive objects, pictures, cartoons, or posters;
Graphic comments, sexually degrading words, or suggestive or obscene messages or invitations; and
Harassment related to gender.
Severe or Pervasive
The conduct must also be “severe” or “pervasive.” For a single episode of harassment to be actionable, it must be severe such as an actual or threatened sexual assault. Otherwise, the conduct needs to include multiple incidents over a period of time. Not all incidents have to be directed at you. For example, if you know that a co-worker has also been harassed by the same actor or if you know of repeated incidents of sexual harassment of others and that nothing was done about it.
Affect Working Conditions
The harassing behavior must also affect your working conditions or create a hostile work environment. This can include losing your job or being passed over for promotion for not consenting to sexual misconduct. It can also occur if the conduct makes you so uncomfortable that you avoid certain job duties or opportunities to avoid the harasser.
There are legal time limits that can affect your claims of sexual harassment. For example, in many cases, an employee must file a formal complaint with the Department of Fair Employment and Housing or Equal Employment Opportunity Commission within a short time period following the harassment or risk losing the ability to file a lawsuit for damages.
It is a good idea to contact a lawyer early on in the process both to be sure that you are within the legal time limits that might affect your case and to receive guidance from someone you can trust to walk you through the process.
The Law Protects You If You Complain About Sexual Harassment.
You are protected under California law if you are retaliated against for complaining about sexual harassment – either formally or informally. Not every employer action, however, constitutes retaliation.
For example, if you have low performance and receive a negative performance evaluation shortly after complaining about sexual harassment, you may not be experiencing retaliation. In most cases like this, the employer would have a legitimate business reason for counseling you based on your low performance.
An employer cannot, however, take an unjustifiable “adverse employment action against you because you complained about sexual harassment. In other words, your employer would be breaking the law if it fires you, demotes you, passes you over for promotion, or even harasses you, because of your complaint. The law also protects employees who participate in sexual harassment investigations from retaliation.
There are many legal nuances to what constitutes actionable retaliation, so if you believe you are being retaliated against for reporting sexual harassment or for telling the truth in a sexual harassment investigation, you should contact an experienced employment attorney.
Should You Take Action?
It takes strength, courage and conviction to speak out against sexual harassment in the workplace. The law, however, protects you if you do, and you cannot be retaliated against for pursuing your lawful right to stop sexual harassment that is occurring in your workplace.
Remember, sexual harassment is illegal, and you do not need to endure it in order to keep your job. Whether you are a woman being harassed by a man or woman, or a man being harassed by a man or woman, you have a right to a workplace that is free of harassment.
If you are or you feel you might be sexually harassed at work, you should consult with an experienced employment attorney to help you navigate your way through the process.
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