Sexual harassment is a crime under California law. Even seemingly harmless actions can qualify as sexual harassment. If you are a victim of sexual harassment, you should contact a skilled sexual harassment attorney to help defend your rights. At the Sexual Harassment Attorney, we represent clients experiencing sexual harassment in California.
Understanding Sexual Harassment
Sexual harassment refers to any form of harassment based on sex or gender. This includes discrimination based on pregnancy, gender identity, childbirth, or a person’s sexual orientation. Men and women can be victims of harassment. A perpetrator of sexual harassment can be of similar gender. All forms of unwelcome sexual requests and advances can qualify as sexual harassment.
Sexual harassment falls under two main categories:
- Quid pro Quo.
- hostile workplace environment.
Quid pro quo sexual harassment means that you exchange something for another. For example, a person senior to you in the workplace can promise you a promotion in exchange for consent to sexual advances.
You could be working in a hostile workplace environment if you receive sexual comments that affect your performance. Sexual comments can also intimidate you, making it challenging to execute your duties. You can face harassment even if there is no sexual conduct directed at you. The level of harassment you face must be substantial. The harassment must affect your employment conditions or amount to a hostile or abusive workplace environment.
What Qualifies As Sexual Harassment
Most people often wonder about what qualifies as sexual harassment. The following acts can qualify as sexual harassment:
- Your employer or senior promising you a promotion in exchange for sexual favors.
- Unsolicited sexual behavior.
- Derogatory jokes, comments, or epithets.
- Intentional physical acts like offensive touching, assault, or confinement.
- Retaliation or retaliation threats when you refuse to give in to another person's sexual advances.
- Another person expressing deliberate suggestions or intentions to have sexual relations with you.
- Sexual gestures can include displaying pictures, visuals, posters, or other objects or items of a sexual nature.
- Verbal abuse that can consist of someone making indecent comments about your body and sexual orientation.
- Derogatory or profane language.
Steps to Take When You Face Sexual Harassment
You could file a complaint if you face sexual discrimination or experience any type of harassment. You must file the case within a year of sexual discrimination. The Department of Fair Employment and Housing, abbreviated DFEH, helps parties involved in sexual harassment cases settle their disputes. DFEH acts as a neutral and independent fact-finder. If it learns you were a victim of sexual discrimination and you did not seek compensation, it can file a case on your behalf. DFEH can submit a civil claim for the aggrieved person in federal or state court. Some of the possible outcomes after a civil complaint include the following:
- The court can order your employer to amend the workplace policies or practices.
- Your employer can pay penal damages.
- If the case proceeds to litigation, your employer might have to meet the attorney fees or other charges.
When you file a complaint with the DFEH and receive a notice of the right to sue, your sexual harassment attorney can file a private lawsuit in a civil court.
California law prohibits all employers from subjecting their employees to sexual harassment. Employers must adhere to the law and are responsible for any harassment executed by their supervisors or agents. However, sexual harassment perpetrators can still be held liable for harassing employees. Any person who aids or abets sexual harassment can also face charges. Employers must implement the proper measures to curb sexual harassment and discrimination. Your employer can be liable for sexual harassment for failing to enforce measures to curb sexual harassment.
An employer can also be liable for the sexual harassment of non-employees, including job applicants, clients, or service providers. However, for an employer to be liable for the sexual harassment of non-employees, the employer must have known about the harassment. It must be evident that the employer knew or should have known about the harassment but failed to take action or impose corrective strategies.
All Californian employers must implement precautionary practices to curb and correct sexual harassment or discrimination at work. It is a legal requirement to provide a sexual harassment-free workplace.
Actions Employers Take To Prevent And Correct Sexual Harassment
The law requires employers to take the following steps to prevent workplace sexual harassment:
- Distribute a copy, which must comply with Code 12950.
- Have the formal poster copy indicating that California law is against workplace harassment and discrimination.
- Create a discrimination, harassment, and retaliation policy that is in line with CCR 11023.
The policy should be written and outline all the groups FEHA protects. If more than 10% of the employees are non-English speakers, the employer must have the policy document translated into the employee’s native languages. The policy must list all the current classes of people protected by the law. The law defines protected people as people prone to discrimination or harassment because of a common characteristic they share. People can be protected based on the following factors:
- Race.
- Age.
- Gender.
- Gender expression.
- Gender identity.
- Sexual orientation.
- Physical disability.
- Mental disability.
- Ancestry.
- Religion.
- Medical condition.
- Genetic information.
- Marital status.
- Military or veteran status.
- National origin.
The law must also outline that it is prohibited for managers, senior workers or supervisors, regular co-workers, and third parties to harass employees or sexually discriminate against them. The employer must also outline the process that will be followed if an employee files a sexual harassment case with them:
- The employer must state that when an employee files a complaint, the employer will respond to the complaint on time.
- Inform the employee that he/she will not face any retaliation for reporting workplace harassment or sexual discrimination. The employer must give a similar assurance to other employees involved in an investigation.
- The employee must have the option of reporting the harassment to another person who is not their supervisor.
- If the complaint is against a supervisor, an employee should have the opportunity to report the incident to a designated party, like a human resource consultant.
- Every step of the investigation must be documented.
- The employer must have qualified personnel investigate the employee’s complaint comprehensively and ensure fairness to all the involved parties.
- The appropriate action must be taken depending on the outcome of the investigation.
- Ensure that the investigation is closed and promptly.
The law does not require the employer to guarantee complete confidentiality, but the employer must try their best to maintain confidentiality.
The law also requires all employers to inform their employees and provide them with basic information regarding sexual harassment. An employer can do this by ensuring each employee has a copy of Brochure 185 from the Department of Fair Employment and Housing.
It is not enough for an employer to hand over the workplace sexual harassment and discrimination policy document to employees. An employer must also seek confirmation from every employee to ensure they receive their copy. The best way to confirm receipt of the document is to have a printed form that every employee signs and submits. Some employers send emails to their employees with an acknowledgement form.
If an employer has five or more employees, the law requires the employer to provide an hour of training to non-supervisory employees every two years. This training sensitizes employees on sexual harassment prevention. For supervisory staff, employers should provide 2 hours of sexual harassment prevention training every two years. The training can be physical or virtual. The Department of Fair Employment and Housing offers free training. If your employer fails to provide sexual harassment prevention training and you sue them for sexual harassment, the employer could be liable.
When Workplace Sexual Harassment Is A Crime
Workplace sexual harassment is a crime if it qualifies as sexual assault. Assault occurs when a perpetrator has sexual contact with a victim without the victim’s consent. This is because the victim was unable to give consent or resisted the perpetrator’s actions, but the assault still occurred. You should not hesitate to seek help if you suffer sexual assault in the workplace. Your safety should always be your top concern. Some of the common examples of workplace sexual assault include the following:
- Attempted rape.
- Rape.
- Unwanted sexual touching.
- Forcing a victim to engage in sexual acts.
- Fondling.
If the sexual harassment amounted to sexual assault, you can file two separate lawsuits. You could file a criminal lawsuit for sexual assault and a civil lawsuit for sexual harassment. If the court finds the perpetrator guilty in a criminal case, the perpetrator can go to prison or pay hefty fines. However, in a criminal lawsuit, the victim has no financial compensation.
A civil lawsuit involves financial punishment. The perpetrator or the employer might have to pay the victim some monetary compensation. You can still make a civil claim even if the perpetrator is acquitted of the criminal charges.
Recent Laws On Workplace Harassment In California
In 2019, California Governor Newsom signed several laws into the legislation:
AB 9
This law extends a victim’s right to file a claim with FEHA from one year to three years. It also expands the definition of workplace harassment to include discrimination and retaliation due to an employee’s unique characteristics. These characteristics include gender, gender identity, sexual orientation, religion, race, age, and disability.
AB 51
Under this law, it is illegal for an employer to require employees or job applicants to sign an agreement to waive their right to file FEHA claims as an employment condition. The law also prohibits employers from retaliating, fining, or discriminating against employees who object to or refuse to sign the waiver.
Arbitration waivers are a common employment condition in the hospitality, food service, and retail sectors. Most waivers mainly affect women. The sectors outlined above also rank high in cases of employee sexual harassment. AB 51 preserves employees’ rights to sue.
AB 547
This law aims to curb sexual harassment in the construction and janitorial sectors. It is similar to AB 1978, which the former California Governor Jerry Brown signed in 2016. The law requires employees in these sectors to be trained to prevent sexual harassment and discrimination.
SB 1343
This bill is significant even though it was passed in 2018. Previously, the law only required employers with 50 or more employees to comply with the sexual harassment prevention training requirements. In addition, the training was only for the supervisory staff. SB 1343 expanded the sexual harassment prevention training to employers with five or more employees. The training also includes the non-supervisory staff.
Whether You Can Take Action If Your Employer Was Unaware Of The Sexual Harassment
Yes, you could file a sexual harassment complaint even if your employer was unaware of the harassment. An employer is strictly liable for the harassment perpetrated by themselves or their supervisors. Therefore, if your supervisor harasses you, your employer is liable. The employer is liable even if they were unaware of the sexual harassment.
However, it is important to note that you cannot just file a sexual harassment complaint without following certain steps.
Report The Incident And Keep Records
Report the sexual harassment incident to your employer and keep records of the communication between you and the employer. If you fail to report the sexual harassment incident to your employer, your employer can deny liability and insist that you did not inform them of the harassment.
Provide As Many Details As Possible
You should not just call your HR representative or supervisor when reporting the sexual harassment incident. Instead, you should provide a written statement of everything that happened. Ask your employer to provide you with a read receipt. Ensure that you also provide witnesses to the harassment incident if available.
If The Employer Does Not Respond To Your Complaint
You should file a complaint with the Department of Fair Employment and Housing if you report the harassment incident to your employer but get no response. You should also report to DFEH if the employer retaliates against you for submitting a complaint.
Avoid Posting Details Of Your Case On Social Media
You might feel tempted to share details of the incident with the person who harassed you sexually on social media. However, you should refrain from sharing any details of your case. Any information shared on social media is not confidential. The defense attorneys can use the information shared on social media to discredit your allegations or weaken your case.
Preserve All The Evidence
It is expected to feel like deleting a profane text message or image sent by the offender, but you should not. This is crucial evidence that will come in handy when proving your case. You should preserve as many details as possible, including the time and date when the sexual harassment occurred.
Hire An Attorney Who Understands Sexual Harassment Cases
Sexual harassment cases are intricate, meaning that not all attorneys can handle them. You should go for an attorney with a thorough understanding of sexual harassment laws, including the state and federal laws. An experienced attorney will evaluate your case and help you weigh all the possible options. Employers, mainly giant corporations, have aggressive attorneys who handle sexual harassment claims against them. You should not face the defense attorneys alone because you might lose the case.
Do Not Wait Too Long Before You File A Claim
When you exhaust all the official channels without success, you should contact an attorney to file a sexual harassment claim immediately. Waiting too long can affect your ability to seek compensation. Defense attorneys can also question the credibility of your case if you wait too long before filing a claim. If you wait too long, you can also lose contact with witnesses.
Compensation For Workplace Sexual Harassment
You can recover damages when you file a civil lawsuit against your employer. You can receive financial compensation for:
- Attorney fees and costs.
- Emotional distress.
- Back pay or lost income includes compensation for the wages, bonuses, stock options, and other benefits you lost.
- Any lost promotions.
- Expert witness fees.
- Reinstatement.
The court can also order your employer to change the policies regarding workplace sexual harassment. Most victims of sexual harassment do not seek to be reinstated after filing a sexual harassment claim. However, some employees, especially government employees, can seek reinstatement to avoid missing out on benefits and pensions they are entitled to.
The court can award you punitive damages if you prove that the employer engaged in reckless behavior. You might be entitled to punitive damages if the employer’s conduct portrayed malice, fraud, or oppression. The main aim of punitive damages is not to compensate the victim but to punish the employer for reckless behavior.
Federal law limits the amount you can obtain as punitive damages depending on the employer's size. The maximum punitive damages that can be imposed on an employer with less than 100 employees is $50,000. The maximum punitive damages that can be imposed on an employer with more than 500 employees is $300,000.
Find an Experienced Sexual Harassment Attorney Me
Are you a victim of sexual harassment or discrimination in the workplace?
Our experienced California attorneys at the Sexual Harassment Attorney can help. For many years, we have represented clients experiencing sexual harassment. We will strive to defend your rights and help you seek compensation. Contact us at 800-905-1856 to speak to one of our attorneys.
