Sexual Harassment in California Workplaces
October 4, 2021What do you do if you are sexually harassed at your work place?
Do you report it?
Will you lose your job?
How can you make it stop?
What if it’s a manager, or even your boss?
How do you know if it is sexual harassment or just rude obnoxious behavior?
Exactly, what is workplace sexual harassment in California and what can I do about it?
Sexual Harassment- How Common Is it?
If you are being sexually harassed at work – sadly, you are not alone.
Even the Governor of New York, Mario Cuomo, left office recently after a New York State Investigation concluded he sexually harassed 11 women. The report stated the Governor sexually harassed employees with “unwelcome and non-consensual touching,” offensive and suggestive sexual comments, unwanted groping and kissing, and more.
Notably, the report concluded that he created a hostile workplace for women.
More than 38% of women experience sexual harassment at their workplace. The number may be higher because about 58% percent of them do not file a complaint.
In 2018, the California Department of Fair Housing and Employment reported more than 5,000 requests for right-to-sue letters based on employment-related sexual harassment.
What is Workplace Sexual Harassment in California?
Sexual harassment in California is a type of sex discrimination that violates federal and California law.
Title VII of the Civil Rights Act of 1964 is the federal law that prohibits employment discrimination based on religion, national origin, race, color or sex.
In California The Department of Fair Employment and Housing (DFEH) is responsible for enforcing state laws that make it illegal to discriminate on the basis of race, color, ancestry, national origin, religion, creed, age (40 and over), mental disability, physical disability, medical condition, sex, gender, pregnancy, child birth, pregnancy related medical conditions, sexual orientation, gender identity, or gender expression.
Two Types of Sexual Harassment
Many California Courts divide workplace sexual harassment claims into two categories:
1. Quid Pro Quo Sexual Harassment
Quid Pro Quo is Latin, meaning “what for what” or “something for something.” In everyday language, it means giving a favor or advantage and getting something in return.
In workplace sexual harassment, quid pro quo is usually an offer or a threat made by a supervisor to an employee.
The offer is usually when a supervisor or boss offers a raise, money, better working conditions, or other benefits conditioned upon a sexual favor from the employee.
The threat is when the supervisor or boss threatens the employee with firing, a demotion, fewer days of work, or other adverse actions unless they submit to specific sexual demands.
Quid pro quo sexual harassment is pretty easy to recognize. If your supervisor says, “I will give you the promotion if you go out with me,” or “I will fire you if you don’t sleep with me,” that is quid pro quo sexual harassment.
This type of sexual harassment is severe. Often, just one occurrence can be enough to justify bringing a lawsuit, especially if a tangible negative employment action happened because you refused to submit to the demand.
2. Hostile Work Environment Sexual Harassment
A sexually harassing hostile work environment is created when the harassment is severe and repeated. It does not need to be aimed at you specifically. More formally, this atmosphere is created when the sexual harassment is pervasive and makes your work environment intimidating, hostile, offensive, or abusive.
This type of sexual harassment is very fact-specific and judged on a case-by-case basis. In California, the three components are:
- The severity of the actions
- The frequency of the behavior
- The surrounding context and circumstances.
For example, a single case of rape or sexual assault at the workplace might be enough to establish a hostile work environment.
However, a less severe sexual harassment repeated over time might be enough to cause you emotional distress and affect your mental state or ability to perform your work, which could be judged as creating a hostile workplace.
Crossing the Sexual Harassment Line
If the actions are severe enough, one time might be enough to create a hostile workplace. Lesser action might have to be repeated several times to be judged as creating a hostile workplace.
Here are some additional specific examples that can create a hostile work place:
- Repeated sexual remarks towards an employee
- Repeated unwanted touches to an employee in an inappropriate manner
- Continual offensive or sexually suggestive emails
- Continual inquiries into an employee’s private sex life or sexual history
- Continually bothering the employee for a romantic date or sexual encounter
- Sharing pornography or offensive sexual materials in a workplace setting
- Constantly telling sexual jokes and stories
- Making sexual comments on an employee’s body
- Offensive jokes about someone’s gender identity or sexual orientation.
- Discussing one’s sex life in front of an employee
- Leaving unwanted gifts of a sexual or romantic nature
- Repeated hugs or other unwanted touching
Your Employer’s Duty
In California, your employer has a legal duty to provide you with a safe workplace , free from discrimination – including sexual harassment.
Your employer must provide you with a safe workplace free from discrimination, including sexual harassment.
Under California law, your employer must post the “California Law Prohibits Workplace Discrimination and Harassment” poster and make it available to employees.
Importantly, your employer must develop a written harassment, discrimination, and retaliation prevention policy that follows all the Department of Fair Employment and Housing rules. While there are many requirements, here are the basics.
The policy must –
Create a complaint process:
- that ensures confidentiality to the extent possible
- has a timely response
- has an impartial and timely investigation by qualified personnel
- documentation and tracking for reasonable progress
- appropriate options for remedial actions and resolutions;
- and timely closures
Provide a complaint mechanism that does not:
- require an employee to complain directly to their immediate supervisor.
- Include provisions for direct communication,
- -with a designated company representative
- -or a complaint hotline;
- access to an ombudsperson;
- -identification of DFEH and US EEOC as additional avenues for employees to lodge complaints.
Provide a complaint process that will:
- conduct a fair, timely, and thorough investigation
- provide all parties appropriate due process and
- reach a reasonable conclusions based on the evidence collected
No Retaliation
The employer shall make clear that employees will not be retaliated against as a result of making a complaint or participating in an investigation. This type of retaliation is illegal in California.
What Should You Do Next?
If you feel you are the victim of workplace sexual harassment – we can help you determine your next best steps.
While every case is different, you may be entitled to compensatory damages, punitive damages, or other resolutions.
At the Abramson Labor Group, we are an award-winning team of attorneys that focuses on employment law. We have helped thousands of employees like you get protection and justice they deserve.
Sexual harassment cases are complex and emotional.
Whether you just have a question or are ready to get started, give us a call and let us help.