California’s working women still suffer from sexual harassment every day up and down the State. Even though CA’s employment law is strict, it doesn’t deter most men. What is worse, male dominated corporations often fire female employees after they report the harassment to HR or upper management. If you are one of these victims, what should you do? Should you just forget about it and find another job? Or should you find a sexual harassment lawyer and fight so that the bad guy doesn’t do it again to someone else?
Sexual harassment is one of the more sinister forms of gender discrimination; it often leaves long lasting emotional scars that take years to heal. But you are not alone. You can fight back. If you feel that you have been sexually harassed at work, don’t wait, call an employment lawyer as soon as possible.
This page is entirely about CA law regarding sexual harassment. If you are being harassed, but its not “sexual harassment,” visit our general harassment page here. Below is a broad overview of the two types of sexual harassment recognized by CA employment law. Legally, sexual harassment takes one of two forms:
- hostile work environment (the most common type)
- quid-pro-quo (the stereotypical type)
The foundational sexual harassment statute can be found in the California Government Code § 12940(j).
Hostile Work Environment
The most common form of sexual harassment is hostile work environment. These cases may involve various forms of verbal and physical conduct, usually of a sexual nature (but that isn’t always the case), which creates a hostile or offensive working environment. In such a case, the employee must prove that:
- she was subjected to unwelcome sexual advances, conduct or comments;
- the harassment was so severe or pervasive as to alter the conditions of the victim’s employment and create an abusive working environment; and
- the employer knew or should have known the harassment was occurring.
Your sexual harassment attorney will have to convince the jury that the harasser’s comments, touching, and sexual advances were unwelcome. While that sounds easy enough, it’s not. America’s juries don’t want to believe the plaintiff (the female employee suing). They would prefer to believe that you’re just after a big payday in the form of a verdict.
The best way to demonstrate to the jury that you found the harassment unwelcome is to send a written complaint to human resources (and keep a copy for your records). Or, if the harasser sends you harassing text messages, do not respond with “lol” or “you’re ridiculous.” Either ignore his messages or be bold and say, “not interested.” You would be shocked at how many times women have shown our attorneys text messages where she either participated in the sexual innuendo with messages or responded with messages like “you’re funny.” This makes it very difficult to show that the comments were unwelcome.
Severe or Pervasive
What is “severe or pervasive” enough to create a hostile work environment? When does a annoying or uncomfortable work environment turn into a hostile environment? A jury determines this by looking at all the facts surrounding the harassment. This includes:
- the frequency of the harassing conduct;
- how severe it is;
- whether it is physically threatening or humiliating, or offensive statements or gestures;
- does it interferes with the worker’s job performance.
More often than not the harassed female is terminated for “poor performance” or a “bad attitude.” Sometimes, the employer knows better, and refuses to fire the harassed employee, and instead reassigns her to a position of lesser importance or cuts her pay. In those cases, the harassed employee has been “constructively discharged” because she has no choice but to quit.
It is important to note here that every case is very different and if you’re wondering if your situation is severe or pervasive you need to consult with a lawyer.
Knew or Should Have Known
If a manager at work is the harasser, the employer will automatically be held to “know” that the harassment is occurring. If a managerial employee harasses a subordinate, the company will automatically be liable for the damages.
But its different when the harasser is just a lower-level co-worker. To hold the employer liable for the bad behavior of a coworker, the plaintiff must show the employer knew the harassment was occurring or should have known it was happening but failed to take action. Again, the best way to prove to a jury that the company knew the harassment was occurring is if the female submits a written complaint to human resources or higher management.
The harasser can still be held personally liable even if the employer didn’t know or it was shown the employer had no reason to know of the harassment. We often sue the individuals and the corporation that employs them.
- The DFEH has put together a task force to address this ongoing issue.
- The EEOC has a page on this type of harassment – but CA law is even more protective than the Federal Title VII that the EEOC would apply.
Quid Pro Quo Sexual Harassment
This type of sexual harassment may take the form where a supervisor’s request sexual favors in exchange for job benefits, such as getting or retaining a job, or receiving a favorable performance review or promotion. It can also work in the reverse, where a supervisor requests sexual favors in exchange for not taking an adverse action, such as being terminated or demoted. The essence of the quid pro quo theory of sexual harassment is that a supervisor extorts sexual favors from an employee.
Generally, to establish a violation on grounds of quid pro quo sexual harassment, an employee must show:
- that she was subject to unwelcome sexual advances, conduct, or comments by a supervisor with higher authority over the employee;
- the harassment complained of was based upon sex; and
- the employee’s reaction to the harassment affected tangible aspects of the employee’s work (including compensation, conditions, or the perks of employment).
This kind of blatant sexual harassment is not as common today. But it still occurs. If this has happened to you, contact a work harassment lawyer as soon as possible.
Contact a Sexual Harassment Lawyer
Sexual harassment lawyers across California have recently scored some hefty verdicts and settlements in these cases. But a large verdict requires a good lawyer. If you want to learn about some historical harassment cases that might make your jaw drop, read out blog post about 10 Crazy Sexual Harassment Cases.