California’s Fair Employment and Housing Act (FEHA) defines sexual harassment as a work colleague directing unwelcome and sexually suggestive advances toward you. Sexual harassment can be physical, spoken, or in writing.
Here are four key things to know:
Here at Shouse Law Group, we have helped countless victims of workplace sexual harassment recover significant monetary compensation from their employers while also putting an end to the harassment. In this article, our California sexual harassment lawyers explain:
Federal and California law prohibit sexually harassing people in the workplace, including such conduct as unwanted touching and other physical conduct of a sexual nature.
Being sexually harassed under California law falls into 2 categories:
Both types require that sexual conduct be unwelcome.
Sometimes, employees welcome conduct from a boss or coworker. In these instances, there is no harassment. Whether the advances were welcomed or not can be difficult to prove. It centers on intent, rather than outward actions.
Example: Pauline’s boss, Ted, asks her out on a date and she accepts. They begin a sexual relationship. Ted promotes her, but a year later their relationship ends. Pauline will probably not be able to prove being sexually harassed because Ted’s advances and sexual desire were not unwelcome, there was no sexual violence/sexual assault, and he did nothing that violated the company’s sexual harassment policy or warranted disciplinary action.
In our experience, our clients often have claims for both quid pro quo and hostile work environment harassment. It is important you document everything that happened and save any evidence of the harassment to help us craft a winning lawsuit on your behalf.
All California employers must have a written anti-harassment policy that meets specific requirements under FEHA regulations. This policy must:
In addition, all employers with five or more employees must provide sexual harassment training to all of their employees. This includes:
If your employer failed to provide sexual harassment prevention training, this can be used to help establish employer liability if you are then sexually harassed in the workplace. 2
Supervisors who demand sexual favors for a workplace benefit commit “quid pro quo” sexual harassment.
To prove a case of quid pro quo harassment, you need to show:
Quid pro quo sexually harassing behavior involves the exchange of sexual favors for workplace benefits. In cases that we handle, these benefits take numerous different forms, like:
The quid pro quo element can be either explicit or implied. 4
Whether express or implied, there have to be repercussions for a refusal in order to be harassing. Supervisory employees who threaten negative employment consequences if you refuse their sexual advances must actually follow through on that threat. If they do not follow through on their threat, there is no quid pro quo harassing. 5 However, it can amount to a hostile working environment.
You also have to establish a causal connection. You have to connect the refusal and the repercussions. In quid pro quo cases we handle, evidence of such causal connections often comes from work emails, texts, voicemails, audio recordings, or eyewitness accounts.
Employees have legal protections against workplace sexual harassment and sex discrimination.
A “hostile work environment” can also constitute being harassed. You have a claim against an employer if:
Harassment claims based on a hostile working environment focus on 2 things:
This type of harassment has to be more than just occasional, isolated, sporadic, or trivial. 7 To determine whether a working environment was hostile, courts look at all of the evidence available and whether a reasonable person in your position would feel harassed.
Indirect evidence of harassment is permitted. Stray remarks by coworkers can be used to show that a working environment is toxic. 8 This means that the question of whether harassment is severe or pervasive enough is often one for a jury. Amendments to the FEHA made in 2018 emphasize that summary judgments should be rare. 9
This is why it is so important that you save and compile all the evidence you can of your hostile work environment. We need every piece of proof possible to maximize the odds of winning your case.
A supervisor’s favorable treatment of your co-worker in exchange for sexual returns can create a hostile working environment for you. 10 In these cases, the employee providing sexual favors can even welcome their supervisor’s advances. You can claim you are suffering because of the supervisor’s sexual favoritism.
Example: A supervisor has numerous sexual affairs with female subordinates. Those employees get raises and promotions that are not justified by their job performance. Other female employees may have a claim for a hostile working environment.
The harassment does not actually have to be based on sexual activity, desire, or attraction. 11 In fact, harassment can be non-sexual, as well. It can be on the basis of:
In our vast experience representing employees subjected to quid pro quo harassment and hostile work environments, we have seen sexually harassing behavior in the workplace come from a variety of people:
Who commits the abusive conduct can make a huge difference in a sexual harassment lawsuit. For example, it is easier to hold companies liable for conduct done by supervisors than by non-employees.
Note that when your employer conducts an internal investigation after receiving your harassment complaint, they should try to keep things as confidential as possible. Though complete secrecy cannot be guaranteed in order for them to conduct an effective investigation.
Supervisors or bosses are employed by the same person or company as you. However, they have decision-making power over you.
Most cases of quid pro quo sex harassment that we handle involve a supervisor or boss. They have the leverage – even if it is only apparent leverage – to pressure you into a sexual favor. However, a supervisor’s conduct can also contribute to a hostile working environment.
Sexually harassing behavior by a boss is different from a non-supervisor’s conduct. It makes the employer strictly liable for the damages won in a harassment suit. The employer is liable even if it was not negligent or deficient in any way. 12
Example: Claire’s boss aggressively and relentlessly flirts with her at work. The company can be held strictly liable for the harassment.
Coworkers are fellow employees of the same company. However, coworkers do not have power over each other in the same way that supervisors do.
Because of the lack of power or apparent leverage, coworkers are rarely able to commit quid pro quo sexual harassment. They can, however, be responsible for creating a hostile workplace.
When coworkers are responsible for sexually harassing behavior, the employer is only liable for damages if it was negligent. Employers are only negligent for sexually harassing behavior if they:
If the employer was not negligent, then it cannot be held liable for the harassment. You can, however, still pursue the individuals who were responsible for your ordeal.
Example: Claire’s coworker aggressively and relentlessly subjects her to flirty sexual behavior. If Claire can show the company should have known about the offensive work environment and failed to take action preventing sexual harassment, it can be held liable. If she cannot show these facts, she can still pursue her coworker with claims of sexual harassment.
People who are not employed by the same company can also be perpetrators of sexual harassment in the workplace. 14 Third parties who have harassed our clients on the job included:
Appropriate corrective actions can include:
Third parties can also commit non-sexual harassment, as well. The FEHA used to prohibit sexual harassment committed by non-employees. Amendments to the law in 2018 removed the word “sexual,” prohibiting all types of workplace harassment by non-employees. 15
An employer can be held liable for sexual harassment by a third party. However, you have to show that the employer:
The extent of the employer’s control over the situation will matter. If it would have been easy for the employer to prevent the harassment, the employer is more likely to be held liable for it.
If you cannot hold your employer liable, you can still pursue a third party in a lawsuit.
Example: The package deliveryman always flirts with Claire when he comes by the office. The supervisor witnessed the flirting but did nothing to stop it (no “bystander intervention”). She can hold her employer liable for the harassment.
It is possible to be sexually harassed by a member of the same sex. 17 Sexual orientation harassment can be grounds for a lawsuit, too.
California sexual harassment law is responsive to the complexities of sexual and gender-based identities in today’s workplace. Every day we hear from clients suffering from same-sex sexual harassment.
Example: A homosexual supervisor requests sexual favors from a male subordinate in return for a raise. 18
Example: The coworkers of a male employee make pervasive comments and explicit jokes about his homosexuality. 19
The simplistic image of a male supervisor demanding sexual favors from a female employee is no longer the only kind of sexually harassing behavior that courts understand.
As long as you have been sexually harassed in a workplace setting, we can file a civil lawsuit on your behalf. You do not necessarily have to be an employee. The law protects the following people from being sexually harassed:
Example: Mary is interviewing for a job as a domestic worker. Her interviewer, a man, says that he can make sure she got the job, but only if she will go out on a date with him.
If you were sexually harassed, you may not have to prove your productivity at work suffered due to the sexually harassing behavior.
The FEHA requires conduct to unreasonably interfere with your work performance for it to be harassing behavior. 21 The amendments made to FEHA in 2018 added several statements of intent about the law.
One of them was that you did not have to show that your “tangible productivity has declined as a result of the harassment.” Instead, you only have to show that the harassment altered working conditions to make the job more difficult. 22
Statements of legislative intent like this are not as binding as a statute, though. One California appeals court seemed to follow the 2018 amendments. 23 The California Supreme Court has not yet ruled on it.
You can still file sexual harassment complaints if you signed an agreement that waived your rights to sue or disparage your employer. 24 Even if you agreed to arbitration as a condition of your employment contract, you can still file sexual harassment cases in civil court. 25
Employers in the state of California cannot require you to release the employer from liability for sexually harassing behavior in exchange for:
Any agreement or contract that does this is not enforceable and is a violation of public policy. 26 The only exception is a negotiated settlement agreement to resolve a lawsuit or claim against the employer. 27
If you are a victim of sexual harassment, we would fight to recover compensatory damages in your lawsuit. These include:
We would also ask for reimbursement for your:
If you resigned your job due to intolerable working conditions, we can also claim “wrongful constructive termination” and pursue all the back pay, front pay, and benefits you would have received had you not been forced to quit.
If you were a public employee who quit or was fired, the court can reinstate you to your job – though in practice many sexual harassment victims prefer not to return to their old workplaces.
Courts can also award you punitive damages if the defendant acted with either:
If you lose these claims, you could pay damages to your employers. However, recent amendments to the law have restricted when employers can recover these damages. Now, courts can only give employers these damages if the claim was frivolous. 29
Note that if your employer has EPLI insurance, then the insurance company rather than your employer will be in charge of its defense.
In our experience, we can usually settle sexual harassment claims in our clients’ favor with a large financial award.
Note that the settlement agreement cannot include a gag provision. Any part of the settlement that prevents the disclosure of information about the harassment is not enforceable in court. 30 This law went into effect on January 1, 2019. 31
Lawsuits for sexually harassing behavior have to be filed before the statute of limitations expires. Because these claims involve behavior that happens in the workplace, an administrative filing to report harassment has to be made, first.
This complaint process involves filing a written claim with:
CRD filings generally have to be made within three years of the most recent instance of sexually harassing behavior. If you (the “complainant”) learn of the behavior after the three years have expired, you can have a 90-day extension to file.
EEOC filings under federal law have to be made within 180 days of the most recent incident of sexually harassing behavior. This window is extended to 300 days if a claim is also being filed with the CRD.
The EEOC or CRD will respond by either:
Once you have received a right to sue letter, you have one year to file your lawsuit. 32 Though we have had great success in resolving these cases quickly with a giant settlement by sending a strongly-worded demand letter. Businesses are not anxious to court controversy, and they are usually willing to negotiate in return for avoiding legal wranglings.
If you endure sexual harassment that escalates to unwanted physical touching or other sexual contact, you can file a police report. Law enforcement would then conduct an investigation and press criminal charges if they find probable cause.
Note that the burden of proof for someone to be convicted of a crime is very high – beyond a reasonable doubt. When you sue someone for sexual harassment, they can be found liable based on a much lower burden of proof – by a preponderance of the evidence. Therefore, it is not unusual to have cases where victims win their civil lawsuit, but the perpetrator escapes a criminal conviction.
If you were injured or sexual assaulted at the workplace, you should contact the police and seek medical care right away.
For more information, refer to the following:
