Sexual harassment is a violation of the California Fair Employment and Housing Act (FEHA) and federal law. Despite these laws, sexual harassment remains a prevalent problem for women in the workplace. At Rukin Hyland, we represent employees in all industries and at all job levels who have experienced sexual harassment at work.
What Is Sexual Harassment?
There are two types of unlawful sexual harassment – quid pro quo harassment and hostile work environment harassment.
- Quid Pro Quo Sexual Harassment
Quid pro quo sexual harassment occurs when an employee (generally, a manager or supervisor) conditions a term or condition of a person’s employment on her submission to unwelcome sexual advances. Quid pro quo harassment can be either the threat of an adverse employment action (“sleep with me or you’re fired”) or the promise of an employment benefit (“sleep with me and you’ll get a raise”) and is unlawful regardless of whether the person harassed refuses or submits to the unwelcome advances. The quid pro quo can be express or implied, and subtle hints or innuendo can constitute harassment so long as a reasonable woman would have interpreted the conduct to be a threat or demand that she engage in sexual activity as a condition of her job.
- Hostile Work Environment Sexual Harassment
Hostile work environment sexual harassment occurs when an employee is subjected to unwelcome conduct of a sexual nature that is so severe or pervasive that it unreasonably interferes with an employee’s work performance or creates an intimidating, hostile, or abusive working environment. Whether the sexual conduct complained of is sufficiently pervasive depends on the totality of the circumstances, including the nature of the conduct, its frequency, and the context in which it occurs.
Harassment need only be severe or pervasive to create a hostile work environment. In the case of verbal harassment, an employee generally must show a pattern of ongoing harassment over time to establish a hostile work environment. If the harassment is particularly severe, such as a sexual assault, a single instance can sufficiently alter the terms and conditions of employment and create a hostile work environment. In addition, the status of the harasser may make the harassing conduct more severe, such as harassment by a high level executive, manager, or owner.
Employees do not have to be the direct target of sexual harassment to experience a hostile work environment. For example, women who constantly witness a manager harassing other female employees may have hostile work environment claim. In addition, if a boss or manager shows favoritism toward an employee with whom he is involved in a sexual relationship, it may create a hostile work environment for other co-workers.
What Kinds of Acts Can Create A Hostile Work Environment?
The following types of verbal or physical conduct can constitute sexual harassment:
- Unwelcome sexual comments, jokes, or innuendoes – either in person or in emails, text messages, or other electronic communications
- Sexually suggestive touching, groping, or bodily contact against the employee’s wishes, invasion of an employee’s personal space or impeding her movements, or staring at employees or their bodies in a sexual manner
- Unwanted sexual advances or repeated requests for dates or sexual favors, or to spend time together outside of work
- Posting, circulating, or showing sexually explicit images or material in the workplace
- E-mailing or viewing pornographic images on the job
Who Is Liable For Sexual Harassment?
Under California law, an employer is strictly liable when a manager or supervisor engages in sexual harassment. This means that if a manager or supervisor sexually harasses a subordinate, the employer is automatically liable. In cases of co-worker sexual harassment, the employer is liable for the harassment only if it knew or should have known about the harassment and failed to take appropriate corrective action. In both cases, the employees who engage in the harassment are personally liable for their unlawful conduct.
In addition, employers are liable for harassment by their customers or clients if they know or should have known about the harassment and fail to take action, regardless of the importance of the customer or client to the employer’s business.
What Must Employers Do To Prevent Sexual Harassment?
The FEHA requires all California employers to take affirmative steps to prevent sexual harassment in their workplaces. This includes maintaining and distributing a written anti-harassment policy that must:
- Identify all protected groups under the FEHA (race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, military and veteran status, and sexual orientation);
- Provide a mechanism by which employees may report harassment to someone other than their direct supervisor—for example, to a human resources manager, a complaint hotline, or to the DFEH or EEOC;
- Include a directive that supervisors must report all harassment complaints received to a designated company representative;
- Include a statement that all complaints will be followed by a fair, complete, and timely investigation and that the employer will maintain the confidentiality of the complaint and investigation to the extent possible;
- Provide that upon conclusion of an investigation, the employer will take appropriate remedial measures if any misconduct is found;
- Make clear that employees will not be subjected to retaliation for making a harassment complaint or participating in an investigation or proceeding related to a harassment complaint; and
- Include a statement that third parties, as well as supervisors and co-workers, are prohibited from engaging in unlawful harassment.
In addition, employers with more than 50 employees are required to provide two hours of mandatory sexual harassment prevention training to all of their supervisory employees within six months of their employment and every two years thereafter.
If an employee reports or complains about sexual harassment, or the employer knows or has reason to know about harassment in its workplace, the employer must take immediate and effective steps to end the harassment. An employer cannot retaliate against any employee who reports harassment, or who participates in a harassment investigation.
What Should You Do If You’re Being Sexually Harassed?
Too many employees are still subjected to illegal sexual harassment and gender discrimination. If you are experiencing harassment at work by your manager, co-workers, or customers, you should review your company’s harassment prevention policy and process for handling harassment complaints. You may also contact our firm for a free consultation regarding your employment rights. We have vast experience helping clients who have experienced sexual harassment, and understand how difficult, emotionally stressful, and sensitive these matters can be. We will work with you to obtain a just, effective, and timely resolution of your situation.