Category Archives: Harassment

Unfortunately, sexual harassment at workplace is still a frequent and reoccurring event in California. We are still surprised at some of the inappropriate and ridiculous conduct by employers and their employees when our law firm gets calls from potential clients. Considering that hostile work environments are still very common, people want to know how best to complain to Human Resources (HR) at work. How should you complain to minimize the possibility of retaliation?

Quick Legal Overview

Usually, sex harassment is a type of hostile work environment. Under California law, it is unlawful for employers to sexually harass employees in the workplace. Under the Fair Employment and Housing Act (“FEHA”), sexual harassment is defined as harassment because of sex. More specifically, sexual harassment is unwanted sexual advances, or visual, physical, or verbal conduct of a sexual nature. Our main sexual harassment page throughly examines this area of law. If you want all the nitty gritty, visit that page.

Visual conduct includes making inappropriate and sexual gestures as well as showing sexually suggestive material in the work place such as pornography. Verbal conduct obviously includes sexually charged comments such as comments about a person’s body parts or comments regarding the person involves in sexual acts. Verbal conduct also includes jokes. Finally, physical conduct includes touching the body of another inappropriately. If any of these above things are happening to you in your workplace, whether it is a co-worker or a supervisor, you should contact a sexual harassment lawyer immediately.

Complaining to HR About Sexual Harassment

Often, employees will complain about the sexual harassment to his or her superiors or to HR. However, employers may not respond properly to an employee’s complaint of sexual harassment. The Department of Fair Employment and Housing (“DFEH”) sets forth a comprehensive procedure for HR and employers in the event of a sexual harassment claim by an employee.

1. Upon an employee’s complaint, the employer should inform the employee of his or her legal rights.
2. The employer should do a full and complete investigation.
3. If the employer finds there to be sexual harassment (not surprisingly – they never do), the employer should respond timely by taking action against the sexual harasser, and the employer should take necessary steps to prevent it from happening again.

Unfortunately, HR and employers do not always respond in this fashion. A lot of times, the employee will complain and the employer will not take any steps to protect the employee’s rights or prevent it from happening again. For example, our firm has seen far too many instances where the employee complained and the employer either ignored the complaint, told the employee to handle the matter on their own, or go through the motions of a superficial procedure, yet still allow the sexual harasser to work with, or in close proximity to, the harassed employee.

How Best to Complain to HR About Harassment

In our experience, we find that the most effective complaints to human resources have the following characteristics:

1. Polite & respectful – do not be hyper-aggressive, threatening, or self-righteous
2. Helpful – meaning the employee offers practical solutions to assist HR in dealing with the problem
3. Written – always put your complaint in writing and keep a copy
4. Specific – dates, details, and witnesses

If you have complained to your employer about a toxic sexual environment, and your employer is failing to take any action to stop such conduct, then you should contact a great employment lawyer immediately.

Sadly, sexual harassment in the workplace is still a common occurrence in California. Most employees are unaware of their rights when it comes to harassment, and a lot of times, employers fail to inform their employees of such rights. Therefore, if you feel like you have been sexually harassed, you should contact a sexual harassment lawyer immediately.

Case law update – Guardia v. Roger Stuart Clothes, Inc. Unfortunately, sexual harassment in the workplace occurs frequently across California and the nation. The most common form of harassment is a hostile work environment. Cases involving hostile environment involve many and different kinds of verbal and physical conduct, whether sexual or nonsexual in nature. Such conduct creates a hostile and offensive working environment.

To prove a hostile work environment, an employee must show that he or she was subjected to unwelcome sexual advances, conduct or comments; and the harassment was so severe or pervasive as to alter the conditions of the victim’s employment and create an abusive working environment.

Guardia v. Roger Stuart Clothes, Inc

In Guardia v. Roger Stuart Clothes, Inc., plaintiff was subjected to unwelcome sexual advances, conduct and comments, and the harassment was so severe that it created an abusive working environment. Plaintiff sued the Roger Stuart Clothes Inc. and the president for sexual harassment, among other things. During her employment, the president of the company often discussed with her unwelcome sexual comments, had males take their pants off and walk in their underwear in her presence, and demeaned employees by the use of inappropriate nicknames such as racial slurs and sexual pet names. Further, the president promoted the viewing of pornography in the workplace, and at one point, released a false letter internally that plaintiff had sex with another employee.

The jury found in favor of the plaintiff and was awarded among other things, lost past earnings, past and future pain and mental suffering, and punitive damages against both the employer entity and the president of the company.

Cases like this should reassure California employees that their rights under California law are still very much protected by the courts. Even though sexual harassment in the workplace is sadly a frequent occurrence, employees can rest assured that their rights will be protected by the legal system if violated. If you believe that you are or have been a victim of harassment and a hostile environment, contact an employment law lawyer immediately.

Attorney Case Law Update: Ventura v. ABM Industries – California Second District Appellate Court. Branigan Robertson is an employment lawyer who focuses his practice on harassment, retaliation, and wrongful termination.

Facts of the Case

This case was brought by Sylvia Ventura. Within a few weeks of becoming Ventura’s supervisor, Carlos Manzano began flirting with her and telling her that she was pretty and that he was in love with her, advances which Ventura turned down. Once, when Ventura was cleaning an office, Manzano pulled her arm, pushed her against a wall, and told her that he liked her, and to pay attention to him. Another time, in an elevator, he asked her to kiss him, and leaned in very close. Ventura’s cleaning cart blocked him from kissing her.

Ventura did not complain about Manzano because she did not think she would be believed, but might be disciplined. She testified that she had seen this happen to other workers. Ventura did not complain about Manzano because she did not think she would be believed, but might be disciplined. She testified that she had seen this happen to other workers.

On August 22, 2005, she again saw Manzano drinking at work. While she was cleaning, he left her several voicemails, suggesting in one of them that she “had had a good time” with her husband the day before. Later that day, while Ventura was cleaning the handicapped stall in one of the men’s bathrooms, Manzano entered the bathroom and closed the door. He grabbed her arms from behind, squeezed her, and started rubbing his parts on her buttocks. She tried to shout, but he had his arm across her neck so tightly that she couldn’t breathe. His fingers left marks on her. He also bit her.

Ventura managed to break free. She hid in an office, under a desk, until she felt safe. She called a friend and also called area supervisor Martinez. She did not tell Martinez about the incident, but told him that Manzano and others were drinking in the janitor’s room and that he should come and see. He told her that he couldn’t do that right now.

She left the building, then returned, afraid that if she left, she would lose her job. She again called Martinez, this time telling him what had happened. He told her to give Manzano her keys and tell him that she was leaving because she couldn’t bear it any longer. He also told her to come to the office the next day to prepare a statement. Ventura said that she was going to call the police. Martinez told her not to, because company ethics did not allow it. (Ventura did go to the police, who documented bruises.)

Ventura called Manzano and told him that she was leaving and that he had to pick up her keys, and that she had called Martinez. Manzano came downstairs. Ventura threw the keys at him and took off running to her car. He followed, calling her name, and saying “oh, we’re going to file a lawsuit, right?” and telling her that he was a very vengeful person. She got into her car. Manzano held the door so that she could not close it, and reached in and banged on the steering wheel, swearing at her and telling her that he loved her. She put the car in reverse, and he let go.

Labor Code § 51.7

California Civil Code § 51.7 states, “All persons within the jurisdiction of this state have the right to be free from any violence, or intimidation by threat of violence, committed against their persons or property because of political affiliation, or on account of” their “sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, or sexual orientation….”

Defendants next argue that section 51.7’s reference to threats or violence because of a person’s sex logically means that the offending act must be based on hate. They further argued that there was no evidence of hate here, because Manzano told Ventura that he loved her. The Court found that hate is not an element, though it also added that even if it was, we would reject defendants’ argument that Manzano’s protestations of love mean that there was no evidence of hate. The evidence was that Manzano ‘loved’ Ventura enough to attack her and hurt her.

Ventura won her case and was awarded $125,000. Her attorneys applied for their fees and the Court awarded $550,000 in fees.

At the end of the day it was a good result for a client who was in need.