Sexual harassment is a scourge of the modern workplace. No one should have to endure that kind of behavior. Fortunately, both state and federal law prohibit sexual harassment in your place of employment and provide many remedies if you have been a victim.
California's Fair Employment and Housing Act (FEHA) prohibits harassment because of sex. FEHA defines “harassment because of sex” to include “sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions.” Sexual harassment consists of unwanted sexual advances, as well as conduct of a sexual nature. Some examples of the types of conduct that constitute sexual harassment include:
- Unsolicited sexual advances
- Inappropriate physical contact (i.e., a shoulder massage)
- Offering a raise or promotion in exchange for sexual favors
- Retaliation because of refusing sexual advances
- Staring or leering
- Making inappropriate comments about one's physical appearance
- Making sexual jokes
- Showing or emailing offensive pictures
- Using derogatory terms to describe someone
These are some common forms of sexual harassment, but this is by no means an exhaustive list. Sexual harassment claims are often divided into 2 categories:
- Quid pro quo: This refers to the practice of offering employment benefits in exchange for sexual favors, as well as retaliating for refusing such offers.
- Hostile work environment: This type of sexual harassment occurs when inappropriate conduct (such as described in the list above) is intended to, or has the effect of, creating an intimidating, hostile, or offensive working environment for the victim.
The above workplace behaviors are not only wrong, they are against the law. If you find yourself in one of these situations, you have rights and remedies available to you. If you are unsure if the conduct constitutes sexual harassment, please contact an attorney who can advise you of your rights.
Who is protected from sexual harassment?
FEHA protects the following individuals from sexual harassment in the workplace:
- Job applicants
- Unpaid interns and volunteers
- Independent contractors
Who is liable for sexual harassment?
Depending on the circumstances, both the offending employee and the employer can be held liable for sexual harassment:
- If the harassment was perpetrated by a supervisor or agent of the employer, the employer is strictly liable.
- If the harassment was perpetrated by a non-supervisory employee, the employer may be liable if the employer knew or should have known of the harassment and failed to take “immediate and appropriate corrective action.”
- The employer may also be held liable for acts of non-employees against protected individuals, if the employer knew or should have known of the harassment and failed to take “immediate and appropriate corrective action.” An example of this is when an employee at a restaurant is harassed by one of the customers.
- The employee is personally liable regardless of whether the employer knew or should have known and failed to take action.
What responsibilities does the employer have to prevent sexual harassment?
The onus of preventing sexual harassment falls on the employer. FEHA imposes several responsibilities on employers in this regard:
- Employers are required to take “all reasonable steps” to prevent the occurrence of sexual harassment.
- Employers must post a poster outlining the sexual harassment law made available by the California Department of Fair Employment and Housing (DFEH).
- Employers must distribute a brochure published by DFEH or an equivalent document to employees, intended to educate them on the law regarding sexual harassment.
- Implement a sexual harassment prevention policy and corresponding procedure for complaints, including:
- Informing the complainant of his or her rights
- Conducting an immediate, thorough, and objective investigation
- Interviewing all relevant parties
- Communicating the results to the complainant, the accused, and others involved if appropriate
- If the investigation shows harassment occurred, swift action should be taken against the harasser, with the complainant informed of such
- Taking steps to prevent any further harassment
- Rectifying any loss by the complainant
- For employers with 50 or more employees, 2 hours of classroom training on sexual harassment must be provided to supervisory employees, as well as further training and education every 2 years.
What can I do if I am the victim of sexual harassment?
If you are or have been a victim of sexual harassment, there are several things you should do. First, you should communicate to the harasser that the conduct is unwelcome, both verbally (i.e., telling them to stop) and nonverbally (i.e., walking away). Second, you should report the incident or behavior, either to your immediate supervisor or to someone else (i.e., someone in human resources), depending on the circumstances.
You also have the right to file a complaint with DFEH. The complaint must be filed within one year of the harassing conduct. The Fair Employment and Housing Commission can impose fines of up to $150,000 on each responsible party, as well as awarding back pay, promotion, or reinstatement at the position if you were fired. A civil lawsuit is also possible, which can result in much higher damages, depending on the circumstances.
Sexual harassment can appear in many forms, and technology has increased the ways it can be perpetrated. If you are a victim of sexual harassment, please contact an experienced sexual harassment attorney who can help you determine your rights.
Helix Law Firm can help with your sexual harassment case
We can help you obtain compensation and assert your right to be free from sexual harassment. The sooner you get in touch with us, the sooner we can start working for you. We know this is a difficult situation, and we will handle your case with discretion and confidentiality.