Sexual Harassment In The Workplace: What is Sexual Harassment in California?

When an employee has to gratify the sexual appetites of someone else in order to make a living, that is sexual harassment. The law classifies sexual harassment in two categories, quid pro quo and hostile environment sexual harassment.

Quid Pro Quo sexual harassment involves a supervisor who demands sexual favors for other job benefits. This occurs when a supervisor requires sexual gratification for raises, promotions, or just keeping the job. This includes punishing those who refuse to comply.

Hostile Work Environment sexual harassment is where the workplace is hostile or abusive on the basis of sex. The sexual environment has to be such that it would offend a reasonable person. Further, the employer knew or should have known about harassment and failed to promptly remedy the situation.

In California, when supervisors are committing the harassment, the employer is automatically liable if the harassment culminates in tangible employment action. Tangible employment action is reassignment to a less desirable position, to failure to promote, to termination, or other negative action. If no such tangible employment action is involved, the employer will be liable anyway unless it can establish a defense that it acted reasonably to prevent the harassment and the employee did not take advantage of the employer’s preventive actions.

To best preserve their rights, employees who feel they are sexually harassed should immediately report it to their employer and follow the company’s sexual harassment policies. These policies usually mean informing the employers human resource department of the problem, and that is exactly what a sexually harassed employee should do.

Do not “play along” or appear to consent to the harassment. This is a defense to sexual harassment. 

Sexual harassment is an extremely complex area of the law, and employees should consult with knowledgeable attorneys if they fee they are sexually harassed. A lawsuit on the basis of sexual harassment may likely require the filing of a claim with different state and federal administrative agencies. People who think they have been sexually harassed are strongly advised to seek legal assistance.


California Sexual Harassment Law: Employer’s Duties in the Workplace Under Sexual Harassment Laws

An employer must take all reasonable steps necessary to prevent discrimination and harassment from occurring. If harassment has occurred, the employer has a duty to take measures to not only change the harasser’s behavior, but to prevent potential harassers from unlawful conduct.

Employer’s Duties Under Sexual Harassment Laws

An employer must take all reasonable steps necessary to prevent discrimination and harassment from occurring. If harassment has occurred, the employer has a duty to take measures to not only change the harassers behavior, but to prevent potential harassers from unlawful conduct.

Employers Cannot Permit Retaliation Against Employees Who Complain About Sexual Harassment

Part of preventing sexual harassment in the workplace is permitting employees to seek management’s helping preventing it. Employees are protected from retaliation if they complain about harassment or discrimination. Employers cannot punish employees directly or indirectly for making complaints, assisting or opposing any prohibited practices such as sexual harassment and racial discrimination. If an employer does retaliate, an employee has grounds for a lawsuit.

California Sexual Harassment Law: Important Factors and Remedies on Sexual Harassment Cases

Some things that courts and juries examine when in assessing sexual harassment and discrimination cases are:

  • Frequency of the harassment
  • Severity and offensiveness of the harassing behavior
  • Did the victims act reasonably in the situation, i.e., whether the victim
  • appeared to invite or consent to the harassment
  • Context and circumstances of the alleged harassment
  • The size and nature of the employers business
Examples of Harris & Kaufman’s Sexual Harassment Cases

Some of Harris & Kaufman’s sexual harassment cases include:

In a department store, a male supervisor of a female employee solicited sex from her, graphically discussed his sex life, and would rub her arms and shoulders. After she complained, the supervisor was fired. However, she then was rescheduled to the graveyard shift, received poor performance reviews, and did not get promoted. She sued for sexual harassment and retaliation.

At a car dealer, a male supervisor solicited sex from a male salesman. The salesman refused. After the salesman complained to human resources, he received poor performance reviews and was ultimately terminated. He sued for sexual harassment, failure to prevent harassment, and retaliation.

Remedies for Employees Who Are Sexually Harassed

Employees who are subject to unlawful termination and harassment may be able to recover the following:

  • Past lost wages and other benefits
  • Future lost wages and benefits
  • General damages. This includes emotional distress and pain and suffering
  • Punitive damages
  • Attorney’s fees

Advice for California Employees: What You Should Do If You Are Being Harassed or Discriminated Against

Some advice remains true for many workplace problems, including sexual harassment, hostile work environment, racial or sexual discrimination, and other forms of harassment and discrimination in the workplace. I am a California attorney, and some concepts seem to apply to all work situations.


Follow Your Company’s Human Resource Policies!

If you feel you are subject to workplace harassment or discrimination, do what your company tells you to do in such a situation. In other words, read your employer’s sexual harassment policies and racial discrimination policies, and do what they tell you.

In assessing these racial discrimination and sexual harassment cases, jurors want to see detailed policies on diversity, discrimination, and sexual harassment training as well as basic management techniques. The employees should be educated in these policies and they must be enforced fairly and consistently. Companies can have such policies in writing but do not follow them in practice. If this happens, it often will reflect poorly upon the company in court. Likewise, it may reflect poorly upon the employee if they fail to make use of the policies.

Besides juries, the courts want to see employees taking advantage of the employer’s anti-harassment and anti-discrimination policies. If you ignore these policies, the courts may cut your damages or wipe them out entirely.

Therefore, the victim of harassment discrimination in the workplace has the burden of making use of these policies and following the company’s procedures. Typically, these policies direct employees to complain immediately to the company’s human resources department, and thus you should report what you feel is wrong to human resources. When you make reports, be specific about what happened and be sure to include all conduct that you felt was objectionable.

If no written policies exist, complain to your immediate supervisor.


Take Notes of the Relevant Events, but only the Relevant Events!

While your memory might be clear now, when your case comes to court in two or three years the events will be much more difficult to recall. Cases may turn on the nuances of what someone did or said, and you don’t want your memory to be fuzzy at trial. Therefore, taking notes at the time of the events will be an enormous help. Notes made at the time of the events appear more credible than your memories after a lawsuit has started, and jurors will give them more weight.

However, use caution in your note taking. All of the notes could be evidence in your case. Therefore, limit your note taking to only the relevant harassing or discriminatory conduct. Some people go overboard by documenting all transgressions against them, real or perceived. They appear to be vexatious and disagreeable people. Certainly that will not go over well with a jury!


Gather Your Evidence!

A hostile work environment can take many forms. Did someone draw an offensive picture? Write you a harassing e-mail? Save those items. People sometimes discard these things out of disgust, but they are also destroying their best evidence. These should be kept because you have to prove your case.

You should also save any papers given to you that relate to your problem, such as copies of “write-ups”, policies, etc. By no means should you take confidential or proprietary items from your employer (if you do, you may not be able to use it in your case), but, if such things relate to the harassment or discrimination you are suffering, you should take notes on their author, date, content, where it is kept, and other identifying information so it can be retrieved later on in formal proceedings.


Don’t Try to Secretly Tape or Record Conversations!

Many people secretly record meetings in a hope to catch someone in a damaging admission. “Aha!” they think, “I’ve got them on tape! They can’t deny it now!” Wrong: someone who secretly records a conversation is in big trouble. In California where I practice law, tape recording conversations without the consent of the other person is a crime and you could be prosecuted for it. Even if you do record damaging admissions, the admissions very likely will not be admitted as evidence in support of your case. However, if you make an admission that damages your case, then very likely it will be in evidence against you. It is a no-win situation for people who make secret tape recordings. The best advice is don’t do it.


Do Not Encourage the Harassment or Discrimination!

A big defense to sexual harassment cases is consent. If you appear to enjoy what is occurring, then certainly you will have a hard time proving that you were harassed or discriminated or that you were in a hostile work environment. By all means, do not play along with something you do not like. Rather, make it clear that you do not like what is going on, and then follow your company’s human resource policies on what to do when you feel harassed or subject to discrimination.


Get Legal Advice!

If you feel something wrong is going on, call an attorney such as myself. You will only benefit by getting advice from someone who has experience in tough work situations and who knows the law. There is no downside for you.

California attorneys who specialize in employee rights typically charge contingency fees, meaning that you do not pay them money unless you win a recovery. I often counsel employees in harassment and discrimination situations free of charge.

Workplace harassment takes many forms and not all advice may be appropriate for each case. If you feel you are subject to sexual harassment, a hostile work environment, or other forms of workplace harassment, call Harris & Kaufman at (818)990-1999. We are California attorneys located in Sherman Oaks, California.