San Francisco Sexual Harassment Attorney
At Rukin Hyland, we represent employees in all industries and at all job levels who have experienced sexual harassment at work. We have vast experience helping clients who have experienced sexual harassment and understand how difficult, emotionally stressful, and sensitive these matters can be. We work with our clients to seek a just, effective, and timely resolution of the situation.
What Is Sexual Harassment?
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.
Types of Sexual Harassment
There are two types of unlawful sexual harassment – quid pro quo harassment and hostile work environment harassment.
Quid Pro Quo
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
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.
How Do You Know if You’re Being Sexually Harassed?
The following types of verbal or physical conduct can constitute sexual harassment:
- Unwelcome sexual comments, jokes, or innuendos – 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.
Failure to Investigate
Employers have a duty under California and federal law to investigate all claims of sexual harassment in the workplace. Despite this legal obligation, some employers either fail to investigate allegations of sexual harassment or are negligent in their investigation. A well-known example of an employer failing to take adequate steps to address alleged sexual harassment is detailed in the San Francisco case of Weeks v. Baker & McKenzie, 63 Cal. App. 4th 1128 (1998). In that case, though multiple law firm employees reported that a partner in Baker & McKenzie’s Palo Alto, California office had sexually harassed them—including sending vulgar notes, commenting on their clothing and appearance, tickling and touching them, and asking them on dates—the law firm took no steps to investigate the partner’s conduct until after an employee filed an EEOC charge nearly six years after the first complaint about the partner.
In addition to failing to investigate the harassment claims, the law firm retaliated against the complaining employees by transferring or firing them, refused to disseminate information about how to make a sexual harassment complaint, failed to document complaints that were made about the partner, and generally turned a blind eye to the partner’s misconduct. Ultimately, a jury awarded Ms. Weeks over $7 million in damages (though the trial court reduced the award to approximately $4 million), and the case now serves as a lesson to employers regarding their obligations in handling complaints of sexual harassment in the workplace.
Distribute a Written Anti-Harassment Policy
In the Weeks case, the law firm failed to disseminate information to employees regarding how to submit a sexual harassment complaint even after employees requested such information. California law requires employers to distribute a written policy prohibiting sexual harassment that expressly includes an assurance that the employer will conduct a fair, complete and timely investigation into the harassment, will maintain confidentiality to the extent possible, and will take appropriate corrective action if it determines that any harassment occurred. Your employer’s policy also must outline a complaint procedure that allows employees to report harassment to someone other than their direct supervisor—for example, to a human resources manager or a complaint hotline. Finally, the policy must include an express assurance that your employer will not tolerate any retaliation against employees who complain about sexual harassment. The policy may be included in an employee handbook or other written materials, but in any event employers must provide a copy to all employees.
Conduct Regular Sexual Harassment Training
Under California law, employers with more than 50 employees must provide two hours of mandatory sexual harassment prevention training to all of their supervisory employees within six months of their employment. Employers must require supervisors to repeat sexual harassment training every two years. Although not legally mandated, these same employers, and smaller employers, should require all employees—regardless of whether they have supervisory responsibilities—to undergo anti-harassment training. Their failure to do so can indicate that they don’t take sexual harassment prevention seriously.
Document All Sexual Harassment Claims
In the Weeks case, the law firm failed to document and keep a record of sexual harassment claims made against the partner. Though several employees made complaints about the same person, the firm’s managers did not put these complaints into the partner’s personnel file or otherwise establish a record of the repeated accusations. That was a big problem. If you’ve made a sexual harassment complaint, you should expect your employer to maintain a written record of the complaint. By failing to so, your employer sends a signal that it does not take your complaint seriously or does not intend to fully investigate the claim.
Promptly Conduct an Impartial Investigation
In Weeks, the law firm’s fatal mistake was failing to investigate the sexual harassment complaints it received. Instead, the law firm repeatedly treated the complaints as “he said, she said” allegations and dismissed the claims outright because the partner denied engaging in any misconduct. The Weeks court made clear that this violates the law. Once a sexual harassment complaint is made, your employer has a duty to begin investigating the claim immediately, which means if not the same day, then within 24 to 48 hours of the complaint being made. To prevent bias, your employer should use a neutral third party to investigate the claim. This could be a human resources manager, an outside investigator, or even outside legal counsel. All relevant parties should be interviewed about the claim, including the employee making the claim, the person or persons accused of the harassment, and any witnesses to the alleged harassment or other parties who may have relevant information.
If an employee reports or complaints 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.