Preserving Your Rights: Filing a Timely Sexual Harassment Claim

Preserving Your Rights: Filing a Timely Sexual Harassment Claim

While we might like to believe that sexual harassment doesn’t occur very often, that is unfortunately not true. The U.S. Equal Employment Opportunity Commission receives approximately 7,000 claims of sexual harassment each year — and this number only represents workplace harassment that is reported. Sexual harassment is not reported far too often — and even when it is reported, sometimes the victim can’t recover because they have waited to long to bring the claim.

Read on to understand what constitutes sexual harassment and important considerations for bringing a timely claim to ensure you don’t lose the opportunity hold the perpetrator accountable.

What is Sexual Harassment?

Broadly defined, sexual harassment is unwelcome behavior that is:

  • Made a term or condition of an individual’s employment;
  • Used as a basis for employment decisions affecting an individual; or
  • Unreasonably interferes with an individual’s work performance or creates an intimidating, hostile, or offensive working environment

While there is no exhaustive list of behaviors that constitute sexual harassment, examples include:

  • Actual or attempted rape or sexual assault;
  • Unwanted pressure for sexual favors;
  • Unwanted deliberate leaning over, cornering, touching, or pinching;
  • Unwanted sexual gestures or looks;
  • Unwanted sexual teasing, jokes, remarks, or questions;
  • Pressure for dates;
  • Sexual comments about a person’s clothing, anatomy, or looks; and
  • Spreading rumors or telling lies about an individual’s sex life

Sexual harassment reports in California are higher than the national average, by 5% for women and 10% for men. More than 86% of women and 53% of men in California reported experience some form of sexual harassment in their lifetime. Verbal sexual harassment is most common, followed by physically aggressive forms of sexual harassment and cyber sexual harassment. Marginalized populations including foreign-born men, lesbian and bisexual women, and gay and bisexual men all report increased rates of harassment or assault.

How Long Do I Have to Report Sexual Harassment?

Every state places a limit on the amount of time a victim has to file a claim for sexual harassment, called the statute of limitations. In 2020, California tripled the amount of time an employee has to file a claim with the California Department of Fair Employment and Housing (DFEH) after an alleged violation. Previously, an individual only had one year from the date of the incident to report a violation. The law now allows employees three years to file a claim after the incident occurred.

The extension of the statute of limitations is intended to address the unique concerns associated with sexual harassment, including victim’s need for significant time to come to terms with the incident and to feel comfortable coming forward. Sexual harassment victims often also face serious concerns of retaliation.

Even though the statute of limitations has been extended, it is important to file a claim as soon as the victim is able. The more time that passes, the more likely evidence will be lost or witnesses memories will become hazy. An experienced attorney will work with you to prepare your claim and ease the stress associated with the process. Additionally, if you were the victim of sexual harassment in 2019, it is important to bring your claim as soon as possible.

How Do I Initiate a Claim?

Once you have confirmed that the statute of limitations has not passed, you will need to file a sexual harassment claim. If you have experienced sexual harassment, take the following steps:

  • Be familiar with your employer’s sexual harassment policy;
  • Document evidence of the harassment, including witnesses, after it occurs, including putting all complaints in writing;
  • Notify your employer about the harassment in whatever manner advised in the sexual harassment policy, or, if no policy exists, to a human resource or other responsible employee; and
  • File a complaint with either the DFEH or the Federal Equal Employment Opportunity Commission — a lawyer can help you determine which agency should receive your claim;

After a complaint is filed with DFEH, the department will evaluate the facts and decide whether the complaint warrants further investigation. Once accepted, the DFEH will investigate the facts and legal issues and determine whether to pursue a complaint on your behalf.

You also have the option to file your own lawsuit for employment discrimination instead of using the DFEH investigation process. You will need to complete a Right to Sue notice. It is important to work with an experienced lawyer if you choose to pursue action against outside the DFEH investigation process.

Preventing Workplace Harassment

Employers should take reasonable steps to prevent sexual harassment, including having a clear sexual harassment policy. The policy should include a clear and safe reporting path for employees who have suffered sexual harassment, including appropriate assurances that the employee will not suffer retaliation.

California requires every employer of more than five employees to provide one hour of sexual harassment and abusive conduct prevention to non-supervisory employees and two hours of sexual harassment and abusive conduct prevention training to supervisors and managers once every two years. The training must include practical examples of harassment in a variety of categories including gender identify, gender expression, and sexual orientation. This training requirement is the minimum standard required of employers. If employers identify a need for additional training, they should take steps to provide the necessary training.

In addition to trainings and policies, employers must take active steps to discourage inappropriate jokes or other actions that create an environment that accepts or encourages sexual harassment.

Contact a Lawyer Immediately

One of the most important steps you can take after becoming the victim of sexual harassment is to contact an experienced attorney. At Perkins Asbill, our lawyers believe that every case matters and treat their responsibilities as more than a job. We are focused on protecting the rights of employees from all backgrounds and industries and believe that every employee deserves competent representation to enforce his or her rights.

If you are the victim of sexual harassment in California, contact Perkins Asbill today at 916-446-2000 or through our website to schedule a consultation.