Table of Contents
Snapshot of Se×ual Harassment at Work
Chapter 1: Se×ual Harassment at Work
Chapter 2: Identifying Se×ual Harassment at Work
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Quid Pro Quo & Se×ual Harassment
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Se×ual Harassment and Hostile Work Environment
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Common Misconceptions about Se×ual Harassment at Work
Chapter 3: California Workplace Harassment Liability
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What Happens if Your Employer Is Liable for Se×ual Harassment?
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Se×ual Harassment: When your Supervisor is Liable?
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Faragher/Ellerth Defense: California Applicability
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California's Doctrine of Avoidable Consequences
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When an individual is liable for Se×ual harassment in the workplace?
Chapter 4: Preventing Workplace Se×ual Harassment
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Prevention of Se×ual Harassment at Work
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Prevention of Se×ual Harassment for Employees
Chapter 5: Responding To Se×ual Harassment
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What to do if you have been subjected to harassment?
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Reporting Se×ual Harassment at Work
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What to do if you are subject to retaliation by your employer
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What are the Best Reasons to File a Lawsuit for Se×ual Harassment at Work?
Chapter 6: Hiring an California Workplace Se×ual Harassment Lawyer
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Do you need help with your Se×ual harassment case?
Here's a quick snapshot of Se×ual harassment in the workplace
Se×ual harassment is a common problem in the workplace. It is often not reported because of a lack of information about what it means and how to deal with it.
Despite required workplace training, the guidelines of what to do in response to Se×ual harassment in the workplace are unclear when the line between what is appropriate and inappropriate is crossed.
Se×ual harassment can often lead to a victim's lower productivity, shame, embarrassment, anxiety, or even depression.
Unfortunately, many signs of Se×ual harassment go unrecognized.
A poll done by Quinnipiac University showed that 60% of women had been victims of Se×ual harassment, and about 69% of these instances took place at work.
Another study stated that 81% of people believed that Se×ual harassment occurred in most American workplaces. 90% of respondents thought this wasn't happening at their workplace. This could be because people aren't able to recognize Se×ual harassment correctly.
People will be more likely to report Se×ual harassment at work if they are able to identify the signs and what their rights are as employees.
Employees will feel safer working if they know that there are systems in place for holding supervisors and co-workers accountable. Victims need to be aware of the legal options available to them if these systems fail.
Chapter 1: Se×ual Harassment in the Workplace
What are types of Se×ual harassment in the workplace?
As it pertains to harassment in the workplace, the legal definition of harassment is "unfair or biased treatment of protected groups or classifications based on their particular characteristics."
This is as defined by Title VII of the Civil Rights Act of 1964 and seeks to protect people from discrimination based on Se×, race, color, national origin, and religion. This law prohibits Se×ual harassment. This law covers Se×ual harassment that creates an inhospitable work environment.
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Unwelcomed Se×ual advances
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Requests for se×ual favors
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Gifting se×ually suggestive items
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Graphic comments
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Rude gestures
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Impeding movement
It can be difficult to identify se×ual harassment at work because it can also include situations that aren't se×ual.
Se×ual harassment in California can be described as making offensive remarks about one's se×uality, discussing se×ual acts at work, or retaliation to someone who has filed a complaint about inappropriate comments or activities.
How the Fair Employment and Housing Act (FEHA), Protects Victims of Se×ual Harassment
Although se×ual harassment is already protected by federal law, California provides additional protections to workers.
Employers cannot deny employment or terminate employees based upon se× or gender under the Fair Employment and Housing Act (FEHA).
The Act also imposes a duty on employers to prevent and correct se×ual harassment in order to create a safe working environment. Employers have a responsibility to develop a policy on se×ual harassment and teach employees about it.
The major difference between Title VII and FEHA is the fact that the former applies only to employers with 15 or fewer employees, while the latter applies regardless of how many employees are employed to all private, state and local employers.
Chapter 2: Identifying Se×ual Harassment in the Workplace
There are two types of se×ual harassment that are recognized under federal and state law. The first type is quid-pro-quo. This is the most common form of se×ual harassment. The second type of se×ual harassment is equally serious. It is when se×ual harassment creates hostile work environments.
Quid Pro Quo And Se×ual Harassment
Quid proquo means "something for nothing" and is the exchange of any type of compensation. This could be continued employment, promotion, benefits or any other form of gain in return for se×ual favors. This behavior is considered quid proquo regardless of whether or not the transaction was actually carried out. Se×ual harassment in the workplace is defined as any single incident, and the law provides liability provisions.
Hostile Work Environment and Se×ual Harassment
Hostile work environments are those that create a hostile environment in the workplace by using verbal cues or other physical actions. Not only does it affect the victim but also other co-workers.
This type of se×ual harassment must be severe and frequent enough to interfere with your ability to perform your job, create a toxic environment, or change the terms of your employment.
Evidence must be presented to prove that the victim was affected in their ability to perform their job, their well-being and physical health. The victim's claims are evaluated to determine if they could be considered se×ual harassment in the workplace. This makes the claim objective as well subjective.
Common Misconceptions about Se×ual Harassment in the Workplace
Se×ual harassment is usually thought to only apply between men and women. However, if an incident happens between co-workers who are the same se×, it is not considered se×ual harassment. Another misconception is that se×ual harassment cannot be based solely on se×ual actions or speech.
Contrary to popular belief se×ist male-female interactions do not qualify as se×ual harassment. Laws recognize se×ual harassment committed by someone who is the same se× gender as the victim.
Most people associate se×ual harassment at work with a male supervisor who is preying upon a female employee. However, this false impression is often inaccurate. The Supreme Court ruled that se×ual harassment can be committed by women under Title VII of Civil Rights act 1998. No matter what gender or position, se×ual harassment can occur to anyone.
Whatever the circumstance, se×ual harassment at work is rooted in an individual's se× as the motivator. In the instance of your job being terminated, you will need to show that the termination was due to your inability or refusal to perform se×ual acts, making se×ist comments, and/or other forms of se×ual harassment.
California law states that se×-based discrimination cannot be solely based upon se×ual desire. Se×ual harassment can also be a result of someone's se×.
Chapter 3: California Workplace Harassment Liability
California law makes both the harasser and the employer liable for se×ual harassment-related damages. It could help you to determine who is responsible for se×ual harassment in the workplace.
What Happens if Your Employer is Liable for Se×ual Harassment?
California Supreme Court ruled that employers are liable for any se×ual harassment committed by a supervisor under the FEHA. Employers are liable regardless of whether they knew about the se×ual harassment.
Title VII does not define the term "supervisor", but the U.S. Title VII does not define the term supervisor. However, the U.S.
According to the FEHA, a supervisor doesn't have to have total control over your work. The FEHA defines a supervisor as:
Any individual who has the authority to, in the best interest of the employer to hire, transfer suspend, lay off recall, promote and discharge other employees or to take the responsibility for them or to adjust their grievances or recommend that they be taken.
Employers are liable for harassment by non-supervisory employees under certain conditions. If they are found to have known or should have known about the harassment, but failed to take corrective action, they may be liable.
Employer is also responsible for harassment by non-employees under a negligence standard. The non-employee could refer to a vendor, or a customer. The employer is responsible for all the same conditions as those that apply to the non-supervisory employees.
What happens if your supervisor is liable for se×ual harassment?
California law allows supervisors to be held personally responsible for se×ual harassment at work. If they aid and abet se×ual harassment, they may be held responsible. Aiding and abetting the se×ual harassment is when they knew about it, but didn't take any action.
Faragher/Ellerth Defense and Its Application In California
You might have heard of the Faragher/Ellerth defense. Now you may be curious about what it is and whether it applies to California.
Employers outside of California can use the Faragher/Ellerth defense to protect claims of hostile work environments. Named after two Supreme Court cases, Faragher (v. City of Boca Raton), 524 U.S.775 (1998), and Burlington Industries, Inc. (v. Ellerth, 524, U.S.742 (1998).
Federal law provides this defense if an employer can show that they attempted to prevent se×ual harassment and responded immediately to harassment claims through corrective actions. Employers can also use Faragher/Ellerth if the employee fails to take advantage of resources provided by the employer in relation to their se×ual harassment reporting protocol.
This defense can be used by the employer if it can be proven that no adverse employment action, such as demotion or assignment to a undesirable job, was taken against plaintiff. Employer could be exempt from all liability by using the Faragher/Ellerth defense. The employer could not be held responsible for harassment if they are successful. This is because the victim would have used the resources to avoid harassment.
California does not have a Faragher/Ellerth defense. Instead, the employer can use the doctrine of avoidable consequence.
California's Doctrine of Avoidable Consequences
The FEHA allows the employer to use the defense of avoidable consequences to avoid damages. This doctrine could be used by the employer if they didn't know about harassment and had not been able to take action. To avoid being held responsible if the employer uses the doctrine of avoidable consequence, these three facts must be proved:
The employer took reasonable measures to stop and/or correct any se×ual harassment at work.
The accused did not use the correct channels and resources to address their complaint.
If the accuser had followed the instructions of the employer, the damages they suffered could have been avoided in part or entirely.
Also, the employer must prove that they had resources that plaintiff could have used. These resources are described in the chapter entitled "Preventing Se×ual Harassment at Work".
Important to remember that the doctrine of avoidable outcomes does not exonerate the employer from liability. Only damages are exempted.
What is the Workplace Se×ual Harassment?
An individual could be held responsible for workplace se×ual harassment. California law says that any employee of an entity subject FEHA is personally liable in respect to their unlawful se×ual harassment. This includes emotional distress and assault.
Per employment laws in California, employers are required to provide se×ual harassment prevention training to their employees. But does this training actually train to prevent? The seminars have tons of information on the current laws that prohibit se×ual harassment and the way in which the law defines certain conduct it forbids, yet se×ual harassment remains a reoccurring issue in employment law litigation.
Chapter 4: Preventing Workplace Se×ual Harassment
Prevention of Se×ual Harassment in the Workplace
Employers have a responsibility to ensure that their employees are protected at work. This includes preventing se×ual harassment. Employers are responsible for creating policies and guidelines regarding se×ual harassment for their employees, as well as training and a reporting system. Here are some steps that you as an employer can take to ensure that your workplace is free from se×ual harassment.
Create a Policy Against Se×ual Harassment
Employers are required by law to ensure that a written se×ual harassment policy is in place. It should clearly outline all protected classes and include the legal definitions. Employees will be able to identify se×ual harassment in the workplace if there are examples.
It is the employer's responsibility to communicate this policy to employees and follow the implementation procedures. The policy should be translated into the language of more than 10% of employees who speak a different language from English.
There are several steps that can be taken by the employer and employees to ensure they fully understand the policies regarding se×ual harassment at work. Employees should be given a printed copy to read, sign and return to their employer. Employees could also be sent the policy by email, with the option to acknowledge that they received it and have read it. An employer should keep a copy of the current policy on the intranet. This will allow for tracking and allowing employees to see who has read it.
Employers are responsible for making sure that all employees understand and have read the company's policies on se×ual harassment.
Promote An Ideal Environment
An ideal environment should be one that prevents se×ual harassment and encourages reporting it without fear of reprisal. Employers should make it a priority to provide a welcoming environment for anyone who wishes to report se× harassment. You can create this environment by giving the Human Resource staff the tools they need to record and document complaints. This environment doesn't punish employees who report se×ual harassment and it doesn't make them feel threatened with retaliation.
Leadership and upper management should be involved
To prevent se×ual harassment in the workplace, employees who hold leadership or authority positions should be used. This can be done by them demonstrating good behavior and trying to prevent se×ual harassment from occurring in the workplace.
Provide a clear system for employees to report se×ual harassment
Employers must provide clear systems that allow employees to report se×ual abuse or harassment. Multiple options are better than one system for reporting se×ual harassment. You can complain to your supervisor or to other Human Resource personnel, the EEOC or a hotline.
Supervisors must report any se×ual harassment complaints or observations made to Human Resources.
Employees should have the ability to report se×ual harassment to their supervisors. The investigation process should also be described along with possible corrective actions.
Install a Training Program
California employers with 50 or more employees were required to provide training in se×ual harassment prevention to their supervisors within six months of them taking over the position.
Recently, however, a new bill has been signed that mandates se×ual harassment prevention training for employers with at least five employees in California. This replaces the 50-employee requirement. To be considered compliant for January 2020, employers have until December 31, 2019 to complete their training.
These are the new guidelines
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All managerial employees must receive at least two hours training
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All non-managerial employees must receive at least one hour of training
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All training must be completed within six months of the hiring of new employees48
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Retraining employees is required at least once every two years
It is important to ensure that all employees are trained in se×ual harassment prevention at work. It helps prevent se×ual harassment at work and allows victims to know their rights and how they can report it. In the event that an employer is taken to court, this training helps them prove they have taken all necessary steps to prevent harassment at work.
Help Victims to Come Forward
Employers are responsible for supporting victims of se×ual harassment at work. Employers can protect victims from retaliation, and encourage them to report any instances. Employers must also quickly conduct fair and thorough investigations. Employers should also ensure that they conduct thorough and fair investigations if there is evidence of se×ual harassment.
Resolve Se×ual Harassment Incidents Immediately
Employers have a responsibility to ensure that all se×ual harassment cases are dealt with immediately, without threatening the victim. The harasser must be held accountable for their actions and the situation should be rectified. Employers need to be aware of any behavior that could create a hostile working environment. They should also work hard to change and deter such behaviors. You can fire the harasser and seperate them from the victim, among other things.
Se×ual Harassment Prevention for Employees
It is important to be aware of your company's policies in order to prevent se×ual harassment. The employer is responsible for creating a policy that addresses all aspects of se×ual harassment. It should also outline the channels you can use to report it, and what kind of corrective action you can expect.
Employers should also offer training to prevent se×ual harassment. Employees will need to participate.
Chapter 5: Responding to Se×ual Harassment
What to do if you have been subjected to harassment
Even if you don't plan to pursue the matter further, it is important that you seek help if you have been subject to se×ual harassment at work. Victims should seek support from close friends and family. If you are unable to report se×ual harassment you can find help here.
Reporting Se×ual Harassment at Work
Refer to the workplace's se×ual harassment policy and follow the steps.
Inform your employer about the incidents. Your employer is responsible for ensuring that your workplace is free from se×ual harassment. They must also investigate and correct the situation if necessary.
You have two options when filing a complaint. One is to write it and the other is to follow up with a written summary of what you said verbally. Email is another option. However, you must ensure that the recipient has received the email and understands it. No matter what method you use, it is important to confirm that you received your message.
Keep track of everything. Even seemingly trivial details can become crucial later. Keep track of when, where, who, what, and how the harassment was perpetrated. This will help you to understand how the incident or incidents affected your productivity, your wellbeing, and your overall well-being.
You cannot make an audio recording without permission from another person. California is a two party consent state. This means that both the person recording and the person being listened to must agree. It is illegal to record someone without their permission.
You can make a se×ual harassment complaint to the hotline, human resources personnel, your supervisor or other agencies.
What to do if you are subject to retaliation from your employer
If you face retaliation from your employer or even if you feel like your complaints are not taken seriously, there are several steps you can take.
You can file a complaint with another person. You can file a complaint about se×ual harassment to the California Department of Fair Employment and Housing, or the Equal Employment Opportunity Commission. Only one agency can be filed, and not both. Your complaints about se×ual harassment at work deserve to be heard.
Get legal advice. Kingsley and Kingsley is a firm of lawyers who have extensive experience representing victims of se×ual harassment in California. Contact Kingsley and Kingsley if you've been the victim of se×ual harassment at work. They can help you determine if it is worth filing a lawsuit.
What are the best times to file a lawsuit for se×ual harassment at work?
An attorney can be of great assistance in deciding whether you should file a lawsuit. You can also get legal advice from your attorney. The next step is to file a civil lawsuit at California Superior Court. If you are successful, you can recover attorney fees and costs along with expert witness costs.
You may wonder if it is a good idea to file a lawsuit if you are the victim of workplace se×ual harassment. Here are some steps to follow if you're considering hiring a California workplace harassment lawyer to review your case.
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Talk to a lawyer who is experienced in workplace se×ual harassment - A lawyer who is an expert in se×ual harassment in the workplace is best and has a lot of experience handling these types of cases is better.
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Present your se×ual harassment case - You must provide all evidence that you are able to find, including notes you took about the se×ual harassment, names and addresses of witnesses, proof you informed your employer, and any other information you have. This will allow you and your lawyer to build a stronger case.
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Filing an administrative charge - Before a lawsuit can proceed, a charge must be filed. You have usually 180 days (6 months) to file your charges from the time that the harassment occurred. California allows you to file charges that go beyond the statute of limitations in certain situations. These details should be discussed with your attorney. You can contact the EEOC by mail, online, or in person at a state fair employment practice agency.
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Follow the advice of your lawyer - Your lawyer will give sound legal advice, as we have said before. Your lawyer will advise you on whether it makes sense to file a lawsuit and outline the actions that you can take.