Workplace sexual harassment includes behavior like uninvited advances, requests for sexual favors, and other verbal or physical sexual intimidation. Sexual harassment creates a hostile work environment which can interfere with the victim’s ability to perform his or her duties.
The sexual harasser is usually a supervisor or co-worker, but can also be a non-employee, like a client or vendor. Often, the harasser is in a position of power or authority over the victim, and the harassment is enabled and intensified by that power dynamic.
Sexual harassment can take many forms. Depending on the circumstances, when a superior, co-worker, or business associate engages in any of the following conduct, there may be grounds for a sexual harassment suit:
- Sexually explicit remarks, questions, or jokes
- Inappropriate touching
- Comments on appearance or sex life
- Display of sexually explicit material
- Referring to others with sexist language
- Implications that engaging sexual contact with the harasser will boost the victim’s career
None of the above is appropriate in the workplace, and as an employee, you should not be subjected to them. Sexual harassment claims can be pursued if harassment at work has become a consistent or frequent episode, and is contributing to a hostile work environment. However, a single instance of intentional inappropriate touching by a supervisor is also enough to justify a suit. Much depends on the identity of harasser and victim, and what was said or done.
“Quid Pro Quo” Sexual Harassment
The EEOC (Equal Opportunity Employment Commission) recognizes two distinct categories of sexual harassment. The first is called quid pro quo sexual harassment. Quid pro quo is Latin for “something for something,” which in this case means is you are being asked to perform some sexual act in exchange for a job benefit.
In a quid pro quo situation, acceptance of unwelcome sexual conduct forms a basis for employment decisions. For instance, a supervisor might coerce sexual favors from an employee in exchange for a promotion.
On the other hand, sexual harassment at work can quickly lead to retaliation after the victim rejects the harasser’s sexual advances. Rejection of a superior’s sexual advances might be the basis for a decision to fire, demote, or refuse to promote, results in financial damages to the victim.
What If I Went Along With A Quid Pro Quo Situation At First, But Later Realized It’s Wrong?
If you were propositioned for an exchange of a sexual favor, either for continued employment or some other job benefit, your case is actionable, even if you went along with it. The very act of making that kind of a deal is illegal, whether or not you felt compelled to participate. Even though initially you might have agreed to the behavior, you wouldn’t have if you were not afraid of losing your job. That is illegal and is nothing more than extorting sex. That type of behavior makes your case very valuable, if proven.
Severe or Pervasive Sexual Harassment
Under the law, second category includes all other forms of sexual harassment. Under this category of sexual harassment, no specific job benefit is offered in exchange for a sexual favor. Here, unwelcome sexual advances interfere with the victim’s ability to do his or her job effectively, creating an offensive, intimidating, or hostile work environment.
The second category is analyzed under the “severe or pervasive” standard. This means the harassing behavior must be either severe or pervasive to constitute sexual harassment. It’s a common misconception that sexual harassment must be both severe and pervasive, but it does not.
Severe sexual harassment includes touching in a private area, like the buttocks, breasts, or genitals. Believe it or not, that type of inappropriate, non-consensual touching does actually happen in the workplace! Such severe harassment does not require pervasiveness.
Pervasiveness, on the other hand, is defined by the frequency and period of time over which the behavior occurred. Conduct can be pervasive enough to be considered sexual harassment even if it is not severe. If your co-worker or supervisor propositions you for a date, that is less severe harassment, and require repeated requests (pervasiveness) to rise to the level of sexual harassment.
Even general, non-sexual comments, such as comments about an employee’s gender, can create a hostile work environment where the comments are frequent or severe. Minor isolated incidents or harmless light-hearted teasing does not amount to a hostile work environment. If you are uncertain, it can be helpful to consult with a sexual harassment lawyer to get an idea of whether the conduct at issue is so offensive as to constitute a hostile work environment.
Civil vs. Criminal Cases
At Wrongful Termination Law Group, our firm only ever represents the plaintiff, never the defendants. We always represent the person being harassed.
Sometimes sexual harassment cases are criminal in nature. A sexual assault would for example be prosecuted criminally and civilly at the same time. In those cases, the defendant often asks to have the civil case stayed (postponed) during the pendency (duration) of the criminal case. Other times, the court says “no,” and we are able to get the defendants to plead the Fifth — that is, refuse to incriminate themselves. As you can imagine, this is extremely helpful in proving a sexual harassment claim. If a criminal case is pending, typically that goes faster than the civil case, so we are able to use the evidence from the criminal case to prove the civil case.
Who Can Be Held Liable In A Workplace Sexual Harassment Claim?
Both the harasser and the employer can be held liable. The harasser for the actual sexual harassment itself and the employer for its failure to prevent sexual harassment from continuing, failure to provide adequate training, or failure to investigate prior complaints.
What should I do if I have been sexually harassed at work?
If you are sexually harassed by a co-worker, that does not implicate the business or the employer, unless you complain to the HR department or to a supervisor. In order to then implicate the business as a defendant, you must allow the business to interview the person you’ve complained about, and wait for them to take appropriate actions against your co-worker.
On the other hand, if you were harassed by a supervisor, you should still complain to HR, but you don’t have to take any further steps in order for the business to be implicated.
Normally, sexual harassment is against any business with one or more employees. Even if you are an independent contractor working for a company, you can file a sexual harassment claim against the company if you are sexually harassed.
There is a process to filing such a claim. In California, you must obtain a right to sue letter from the Department of Fair Employment and Housing (DFEH). This is something an attorney can take care of for you, and it must be filed within one year from the time of the harassment.
What Is The Employer’s Responsibility Once They Are Notified Of Sexual Harassment In The Workplace?
The employer has a duty to take all reasonable steps to prevent future harassment from occurring. Typically, the employer will investigate, talking to you, the person you’ve accused, and any witnesses you’ve identified. If they find any substantiation to your allegations, they are likely to move or fire the harasser.
What Is The Statute Of Limitations For A Sexual Harassment Claim?
You have to file with the DFEH within one year of the most recent sexual harassment act and then, depending upon whether you have the DFEH investigate or not, you’d request an immediate right to sue letter. You have one year from the date of the right to sue letter to file your lawsuit in state court.
Some people work for federal agencies, like the Post Office. Federal employees who are sexually harassed would have to file their complaint either with the DFEH or EEMC, which is the federal equivalent agency. From the time that you receive the right to sue notice, you only have 90 days to file, if your lawsuit is against a federal agency.
How Long Do Sexual Harassment Cases Typically Last?
Typically, sexual harassment cases take 12 to 18 months, but can last for years. Most cases settle before trial.
What Type Of Damages Can Someone Seek In A Sexual Harassment Lawsuit?
The most troubling and most valuable form of damage is emotional distress. A smaller part of your damages might be lost past and future wages. Medical expenses are considered special damages, in addition to the possibility of punitive damages against the business, for failing to prevent sexual harassment, or against the individual, for the extreme nature of the offense.
How Important Are Evidence And Witnesses?
The most important witness is you. Your credibility will be very important in proving your case. Oftentimes, there are no other witnesses. Although, there are times where the same harasser has had previous accusations against them. In that case, the witnesses who were previous victims might be very valuable evidence. Those types of witnesses are very helpful to support the credibility of the accuser.
Dos And Don’ts of Filing A Workplace Sexual Harassment Claim
Stop posting on social media. The typical things that defendants look to in order to prove that you were either willing or not adversely affected by the harassment is your social media life. Everyone posts their happiest times on Facebook. They don’t want to post how depressed they are because their boss is harassing them. They post about how great their life is and it’s hard to tell a jury that your life is ruined because of your boss’ behavior, while your social media pages show you dancing on tabletops. That’s the kind of thing that hurts the value of a case.
Also, keep documentation of both what happened and how it made you feel, and your efforts to find replacement employment, if you lost your job. A log of events is very helpful in the case of harassment that is pervasive rather than severe. It’s almost necessary to keep a journal of what happened, when, and who was present. These kinds of comments on a regular basis are otherwise hard to keep track of. You can keep a journal or even send emails to your own personal email account. Don’t use work email for that type of tracking.
How often do Sexual Harassment Cases Settle Out Of Court?
Over 90% of cases settle out of court, before trial, which is true for most civil litigation. For cases that don’t settle, juries are generally very receptive to sexual harassment complaints these days, and are typically very tough on defendants. Just because you have to go to trial in order to have a recovery should not dissuade you from moving forward with a sexual harassment claim.
We represent employees.
If you think you are a victim of sexual harassment, now is the perfect time to take action. You do not need to endure sexual harassment any more.
As a victim of sexual harassment at work, you may have conflicting emotions with regards to your job and performance. You may feel sadness, anger, disgust and a loss of self-esteem due to the harassment you’ve endured. At the same time, you also may be nervous about the possibility of a poor performance review, demotion, or that you might even be fired.
Such feelings are especially poignant when the owner or manager of the company is the person creating the hostile work environment. You may feel powerless and even second guess what you have experienced. However, the encouraging news is that it is possible to take effective legal action with help from a proven law firm with extensive experience and knowledge of sexual harassment law.
A sexual harassment law firm can help you use your company’s internal complaint system, respond to the investigator’s questions, draft your agency charge, and much more. If required, a sexual harassment lawyer can also help you vindicate your rights in court and in front of the jury.
If you believe you are a victim of sexual harassment at work, contacting an experienced Los Angeles sexual harassment lawyer is an important first step. An attorney can negotiate with your employer to try to end the harassment at work and revive your career, as it should be.
With an in-depth understanding of sexual harassment laws and more than 15 years of experience protecting employees’ rights, Wrongful Termination Law Group can provide the insight, advice, support, and reassurance you can expect from experienced Los Angeles sexual harassment attorneys.
Wrongful Termination Law Group is a plaintiff’s firm. We fight hard for our clients and we obtain big verdicts and settlements. We know how sexual harassment cases should be fought. Against an employer, in sexual harassment cases, you need someone who is an expert. We are prepared to help you with all of your legal needs, and because we accept sexual harassment cases on contingency, we do not get paid until you get paid. Contact our Los Angeles sexual harassment attorneys today.