Labor and Employment Law - Sexual Harassment FAQ

What is sexual harassment?

The California Code of Regulations generally defines sexual harassment as:

Verbal harassment, such as epithets, derogatory comments or slurs;

Physical harassment, such as assault, impeding or blocking movement, or any physical interference with normal work or movement;

Visual forms of harassment, such as derogatory posters, cartoons, or drawings;

Requests for Sexual favors, such as unwanted sexual advances or the conditioning of an employment benefit upon an exchange of sexual favors.

Sexual harassment generally occurs in two forms. The first type is called "quid pro quo", where obtaining, keeping, or advancing in a job is conditioned on submission to a supervisor's sexual advances, or where the harassment results in some other adverse employment action. The second type of harassment is harassment which creates a "hostile work environment." This is defined as unwelcome sexual conduct which unreasonably interferes with work performance, or creates an intimidating, hostile and offensive work environment.

Must sexual harassment be "sexual" in nature?

No. Any harassment directed at an employee because of their gender is illegal. Hostile environment sexual harassment does not need to include a demand for sex in exchange for a job benefit or obvious sexual connotations such as sexual jokes, touching, etc.. It is the simply the creation of an uncomfortable environment based upon the victim’s gender.

Is the employer liable for the acts of it’s supervisors?

In most cases, yes. The supervisor usually acts as the employer’s agent. However, the employer can sometimes limit their liability for damages by taking prompt and effective action upon learning of the sexual harassment in cases where the employee has not suffered an adverse job action, and where the employee unreasonably failed to report the harassment or take advantage of the corrective opportunities offered by the employer.

What if it is a co-worker who sexually harasses?

Generally a co-worker is not considered the employer’s agent. In these cases, the employer is usually liable only if they knew, or should have known, of the harassment and let it continue.

Should the harassment be report to the employer?

In most cases, yes. Most employers have a "sexual harassment policy" requiring harassment be reported. These policies are required by law to be posted in the workplace and are usually given to the employee when they are hired. Harassment complaints should always be done in writing, with the employee saving a copy. If an employee unreasonably fails to report harassment, and allows the harassment to continue, then the employee’s damages may be limited. There are certain situations though, where it might be impractical to report harassment, such as where the harasser is the head of the company or where the company is small. If the employee is uncomfortable reporting, because the person to report the harassment to is the harasser, contact this office, the California Department of Fair Employment and Housing or the EEOC.

What if the harasser is the head of the company?

Then it may be difficult to report the harassment. The employee should seek an attorney immediately for advice. Complaining to the "company" in these situations, is essentially complaining to the same person who is the harasser, and is usually pointless. The employee is thus faced with the decision of continuing to be harassed, or quitting. However, from a practical aspect, the prospect of continued employment is doomed, because the victim will never trust the employer.

If the employee is being harassed, should they quit their job?

Not before consulting with an attorney. In these cases, quitting the job may be considered a "constructive termination", because it is the same as being forced to quit. However, the legal standards are complicated and unless certain conditions are met, the employee may not be able to obtain lost wages in a subsequent lawsuit.

What is the employer required to do when harassment is reported?

The employer must immediately take whatever steps are reasonable to promptly punish the harasser and prevent harassment from occurring in the future. This will require the employer to conduct a prompt, fair and thorough investigation. The employer must take the complaint seriously and maintain confidentiality to the extent possible. During the investigation, the harasser and the victim should be separated to prevent retaliation, even if it means giving the parties paid time off. Depending upon the severity and the circumstances, the harasser must be reprimanded, suspended or terminated. In most cases, the employer will be required to terminate the harasser, because the harasser may do it again to the same victim or another person. In many cases, the employer must take remedial steps to assist the victim to recover for physical or emotional injuries. This is usually done through a workers’ compensation claim.

What if the employer retaliates?

The employer is prohibited by law from retaliating. As a rule, the company itself will not retaliate or condone such conduct. However, its’ individual supervisors and friends of the harasser may. The retaliation may be subtle, such as cold shoulders or avoidance, or may be obvious, such as sudden changes in work schedules, reduced hours, pay cuts, verbal assaults or termination. If the employee is retaliated against, the employee should follow the same procedure they used to report the harassment. If this would be fruitless, or the employee is uncomfortable because the person to report the retaliation to is the same person retaliating, the employee should contact this office, the California Department of Fair Employment and Housing (DFEH) or the EEOC.

How can an employer prevent sexual harassment?

One of the best ways to prevent harassment is by educating all employees, supervisors and managers what their rights and obligations are. This is usually done by properly distributing the sexual harassment policy, having frequent training sessions, regularly providing employment evaluations, having open door policies, and other pro-active programs. Most sexual harassment occurs over a long period of time. Like random crime, their is no way for an employer to be 100% sure that one of its’ supervisors will not sexually harass a subordinate. However, if everyone knows the employer doesn’t tolerate such conduct and the employees feel safe about reporting it, and the company is responsive, then whatever episodes of harassment occur will usually be minimized and of shorter duration.

Does the harassment need to be reported to the government?

Usually. An employee can obtain relieve through the government administrative process, or by private lawsuit. Both the California Department of Fair Employment and Housing and the U.S. Equal Employment Opportunity Commission (EEOC) have investigative departments. However, these agencies typically take 6-8 months to process complaints. However, if you want to bring a lawsuit for sexual harassment, you must file with one or both of these agencies, within specific time limits, and obtain a "Right to Sue" letter. We use an expedited procedure for cases when you want to file suit immediately, and we can obtain the Right to Sue letter in a matter of weeks. Contact this office for information.

What kind of damages are available to victims?

Generally, a victim may recovery lost wages, medical expenses, emotional distress, costs of counseling and any other out-of pocket expenses. The employee may also recover "general damages", punitive damages, and attorneys fees.

Are their any time limitations on taking legal action?

Yes. To file a sexual harassment case in State Court, you must usually do so within one year from the harassment, or one year from the time the Right to Sue letter is issued by the Department of Fair Employment and Housing in connection with any administrative Complaint filed. For federal court cases, your Complaint must be filed with the appropriate Federal District Court within ninety (90) days of receipt of the Right to Sue Letter. the Right to Sue Letter issued by the Equal Employment Opportunity Commission (EEOC). However, if the action is brought against a government agency or public entity, shorter time limitations may apply, such a six (6) months. In these cases, you may need to file a "tort claim" with the public entity. You should contact us immediately to discuss the particulars of your case.