The workplace should never be a place where employees have to deal with harassment or abuse, in addition to the ordinary stressors of clients and customers.
If you have an employer or co-worker who is making improper remarks or unwanted contact, and your workplace policies aren’t helping you, then you might need a sexual harassment attorney.
Sexual harassment has numerous definitions, depending on where it is encountered and what the circumstances are. Some examples of sexually harassing behavior include:
If any of these things have occurred and continue after you have asked the offender to stop, you may have a case for a sexual harassment lawsuit. If the harassment involves any type of physical contact, you may not need to wait for a second occurrence.
Any unwanted physical contact may be grounds for battery, and any unwanted physical contact of the private areas may be grounds for a sexual battery complaint, which can be a serious charge.
Though harassment can take place in a number of different ways, sexual harassment in the workplace generally happens in one of two ways: hostile work environment and quid pro quo.
In California, a hostile work environment must meet two requirements:
‘Pervasive’ means that the actions are ongoing and repetitive. A behavior is not harassment if it happens one time and then stops, unless it was sufficiently severe in the first place (in which case it qualifies as “severe”).
‘Severe’ means that the actions are intolerable, intimidating, or oppressive. If the actions are simply annoying, they may not be considered harassment. If you are afraid to go to work each day, the behavior is harassing.
It is important to remember that to be harassment actions can be either severe or pervasive. So, one dirty joke is probably not “severe” and because it only happened once, it’s not “pervasive.” But one offensive touching, like a grope, could very well be “severe” and therefore does not need to be ongoing or “pervasive” to be harassment.
Protected classes in California include race, gender, ethnicity, sexual orientation, disability, and more.
Quid Pro Quo:
’Quid pro quo’ means ‘this for that’. Sexual harassment is often considered quid pro quo, because very often the harasser uses the job as leverage for the harassment, either openly or implied.
An obvious example of quid pro quo is the boss who sleeps with a subordinate under threat of losing their job. An implied example would be the partner who makes lewd comments to a secretary along with daily reminders about how lucky she is to have her job.
To prove quid pro quo:
As an example, if a secretary demands that the CEO sleep with him or he’ll have them fired, it’s unlikely to be quid pro quo, because the secretary isn’t in a position to make that happen.
But if the CEO demands that the secretary sleep with him or he’ll have them fired, then that could be considered quid pro quo.
Sexual discrimination is not quite the same thing as sexual harassment, although they can be related. Discrimination means being treated differently because of an immutable characteristic or being part of a protected class as defined by the Supreme Court.
Race, gender, religion, ethnicity, sexual preference, and disability are things which will be considered ‘protected classes’ for the purposes of a discrimination suit.
Unless the discrimination involves sexual comments or behavior, however, it is not sexual harassment. A woman may be turned down for a job because she is a female, but she may be treated perfectly well in all other aspects of her job.
However, if women in the company are routinely passed over for promotions or positions of responsibility in favor of less-senior males, or frequently given undesirable jobs, this can qualify as a hostile work environment.
Sexual discrimination may be a covert form of sexual harassment. Jobs given to men because they’re ‘stronger’ or to women because they’re ‘better at delicate tasks’ are not harassment per se, but they are discriminatory, and should be a red flag to look for other signs of harassment.
Jobs with physical requirements may state an applicant ‘must be able to lift 50 pounds’ and if more males than females qualify for such jobs, it is not discrimination. But women may not be disqualified from such jobs on the grounds that they're weak.
To file a sexual harassment claim, there are several steps you need to take. This is called ‘exhausting administrative remedies.’
Although you may want to go straight to the courts to handle the harassment, the first thing that needs to be done is to tell your manager. Your HR or employee handbook should have specific guidelines for reporting sexual harassment.
The employer may be liable if the harasser is a co-worker. Regardless, you must let your company know, so they can follow their own procedures for addressing sexual harassment.
Your employer is never allowed to retaliate against you for reporting sexual harassment, or for supporting another victim of sexual harassment. That doesn't mean they won't try.
To determine if an action is retaliatory, several factors must be established:
If you believe you are being retaliated against, there are steps you can take to protect your rights, and an employment rights attorney can likely advise you on the best ways to do that.
You have a right to report sexual harassment whether it happened to you or someone else. Witnessing sexual harassment can be nearly as distressing as experiencing it yourself, and you have the right to stand up for the rights of others, not just yourself.
Here are some tips for reporting sexual harassment to your employer when you have observed it happening to someone else:
If the harasser sees you have their chosen victim’s back, they may back off or move on.
If you have witnessed sexual harassment and want to do something about it, you also have the right to consult with an employment rights lawyer, who can advise you on the best way to proceed.
A person experiencing same-sex harassment may be uncertain about their rights, or uncomfortable about reporting harassment for fear of not being believed. A man may think he will be ridiculed or is just retaliating against a female boss.
Yet sexual harassment is still harassment regardless of gender or sexual orientation. Everyone is entitled to a safe and harassment-free workplace. Reporting and corroborating harassment guarantees that everyone enjoys the same workspace.
Different companies have different allowances for coworkers dating one another. Some companies do not allow ‘fraternization’.
Nobody can stop two people from falling in love, of course, but if one person is considered to be superior to another, then issues of undue influence or unfair favors arise.
Employees have the right to consult an attorney, period. Whether you are experiencing harassment, have witnessed someone else experience it, or just have questions, you have a right to a confidential consultation with an attorney. These consultations are usually free.
Too often, people are nervous about contacting a lawyer, and do not do so until late in the process, when an early consultation might have set them on a better path.
Again, these consultations are 100% confidential and usually free; there is no reason not to call a lawyer early on.
If you believe you have been sexually harassed by your employer or coworker, or have concerns about the harassment of others, our employee rights attorneys at 415-693-0300 or send us an email to request your free consultation. We have offices in downtown San Francisco and in Los Angeles.