Our firm receives several calls per week from potential clients alleging that they were sexually harassed at work. No story is the same as one another, but most sexual harassment stories have somethings in common. For example, most of the sexual harassment stories we hear is male on female harassment. And usually, the male is the supervisor or boss of the female employee. Thus, I figure it would be a good idea to review why sexual harassment conduct by a supervisor is different from lawsuit standpoint than sexual harassment conduct by a coworker of equal level.
Is there a difference between sexual harassment by a supervisor or co-worker?
To answer the above question, yes. While sexual harassment is harmful and traumatic no matter who the harasser is, it does make a difference from a legal standpoint what the harasser’s position is in the workplace. If an employee is sexually harassed by a supervisor, then usually the company is automatically liable. Why is company liability automatic? It is because the supervisor has direct control over the employee, such as whether or not to terminate the employee. Often times, an employee may not complain if he or she is afraid that their job will be jeopardized if the supervisor finds out of the complaint.
Unlike company liability for sexual harassment by a supervisor, a company is not automatically liable for sexual harassment by a co-worker. However, if a co-worker is sexually harassing a co-worker, then the company is usually only liable for the co-worker’s conduct if the company allows, encourages or lets such harassment continue after being put on notice about it. Basically, the company is liable for the co-worker’s conduct if the company has knowledge of it. What this typically means is that the employee being harassed must complain about the harassment to someone in the company (i.e. – human resources or an executive) in order for the company to know about it. If the company has no idea the sexual harassment is occurring, then the company will not be liable.
Case Example: EEOC v. Cyma Orchids Corp.
Cyma Orchids Corp. is a great example of automatic company liability for sexual harassment by a supervisor. Plaintiff was an employee for several years with Cyma Orchids Corp. Throughout her employment she, along with other female co-workers, were sexually harassed by multiple managers and supervisors. On numerous occasions, plaintiff and the other female workers were offered inappropriate and uninvited sexual propositions, had their private parts groped, and were the subjects of sexual jokes and references. Plaintiff was smart enough to retain an employment lawyer to file a sexual harassment lawsuit against her former employer. Since the plaintiff was sexually harassed by supervisors, Cyma Orchids Corp was automatically liable as plaintiff was under direct control of the supervisors. Like many cases, this case settled before trial for over $200,000.
While sexual harassment in the workplace should not happen at all, it is nonetheless very common throughout California. If you are being sexually harassed, whether by a supervisor or a co-worker, contact an employment lawyer today.