Through the #metoo movement that has swept the nation, encouraging victims of sexual harassment and abuse to tell their stories, a heightened awareness of the problem and proliferation of sexual harassment allegations have become public. However, it is just as important to understand your rights and legal options as a victim of sexual harassment.
What Is Sexual Harassment?
Sexual Harassment is defined as any unwelcome conduct of a sexual nature. It takes two forms – quid pro quo and hostile workplace.
Quid pro quo sexual harassment is where a sexual act or favor is made as a condition of getting a job, keeping a job, getting a promotion, or some other circumstance related to employment. For example, if a supervision requires a subordinate to enter into a romantic relationship in order to gain career advancement, the supervisor has committed quid pro quo sexual harassment.
Hostile workplace sexual harassment occurs when sexual harassment is so pervasive and/or severe that it creates an abusive work environment. Factors to be considered as to whether conduct is sufficiently severe or pervasive are: the frequency of the conduct, whether the conduct was verbal or physical, when the conduct was patently offensive, such that any reasonable person would find it offensive, and whether the harasser was a co-worker or a supervisor. An example of a hostile workplace would be one where sexually explicit photographs are posted in a break room, or female employees are encouraged to wear revealing clothing.
Is Sexual Harassment Illegal in California?
Yes. Both Title VII of the Civil Rights Act and the 1964 California’s Fair Employment and Housing Act classify sexual harassment as sexual discrimination and prohibit such conduct.
What Are Examples of Sexual Harassment?
Sexual harassment can occur in many different forms. It is not limited to the stereotypical situations of a male superior harassing a female subordinate. Women can be guilty of sexual harassment toward men and individuals may commit sexual harassment against members of the same sex. Here are a few examples of sexual harassment in the workplace:
- Hanging sexually explicit photographs or other images in the workplace
- Making sexual comments about a person of the same or opposite sex
- Engaging in inappropriate or unwanted physical contact
- Making derogatory jokes of a sexual or discriminatory manner
- Offering benefits in exchange for sexual favors
- Making sexual threats
This list of examples is not exhaustive.
What Is Sexual Harassment Retaliation?
Many individuals may fear reporting sexual harassment in the workplace because they do not want such complaints to negatively impact their current or future employment. Retaliation occurs when an employee makes a complaint or report of sexual harassment in good faith, or if they participate in an investigation of sexual harassment, and they are subject to negative treatment by their employer as a result. Retaliation may take the following forms:
- Ignoring the victim
- Giving the victim a negative performance rating/review
- Gossiping about him or her
- Subjecting him or her to the “rumor mill”
- Giving him or her less desirable work assignments.
How Can an Employer Be Liable for Sexual Harassment?
California and federal courts have sent a clear message that sexual harassment will not be tolerated and that employers must take proactive steps to prevent sexual harassment from occurring by way of training both supervisors and employees. An employer who knows of the sexual harassment of an employee and does not take prompt, appropriate action to respond will be held responsible for the harassment. If an employer does not know of the harassment, but should have known, they may still be held legally accountable. If the employer fails to provide sexual harassment training, this will be strong evidence of liability in a victim’s case.
Do California Employers Have to Provide Sexual Harassment Training?
Yes. By January 1, 2020, California employers with five or more employees must provide a minimum of two hours of sexual harassment training to all supervisory employees and at least one hour to all nonsupervisory employees within six months after they begin their position.
Employers must provide the required sexual harassment training in a classroom setting, through interactive e-learning, or through a live webinar. Trainees must be given instructions on how to contact the trainer with questions and receive an answer within two days.
This training must be provided to each employee at least once every two years.
What Sexual Harassment Training Do California Employers Have to Provide?
Any sexual harassment training provided in California must explain:
- The definition of sexual harassment under the Fair Employment and Housing Act and Title VII of the federal Civil Rights Act of 1964
- The statutes and case law prohibiting and preventing sexual harassment
- The types of conduct that can be sexual harassment
- That the complaint process has limited confidentiality
- Remedies available to victims
- How employers must correct harassing behavior
- How to prevent sexual harassment
- Supervisors’ obligation to report harassment
- Resources for victims
Which Employees Do Employers Have to Train?
Employers having five or more employees must train all supervisors in California, as well as non-supervisory employees. A supervisor is anyone with authority to hire, fire, assign, transfer, discipline, reward other employees, or anyone who can effectively recommend (but not necessarily take) these actions occur.
Who Can Provide Sexual Harassment Prevention Training?
There are three types of qualified trainers in California. They are attorneys who have been members of the bar of any state for at least two years and whose practice includes employment law under the Fair Employment and Housing Act and/or Title VII of the federal Civil Rights Act of 1964; human resource professionals or consultants with specialized practical experience in sexual harassment prevention, investigation, and response; and law schools, or college or university instructors with post-graduate degrees and experience or special teaching credentials related to the subject.
How Can California Employers Prevent Sexual Harassment in the Workplace?
California employers can prevent sexual harassment by:
- Drafting a comprehensive sexual harassment policy that complies with state and federal law
- Conducting ongoing education for employees about sexual harassment
- Monitoring the conduct and environment of the workplace
- Encouraging comments regarding the work environment, including problems regarding sexual harassment
- Letting employees know that there is a “zero-tolerance” for sexual harassment in the workplace
- Posting the sexual harassment policy in a prominent place and distributing the policy to all employees
- Treating allegations of sexual harassment seriously and investigating them
- Being both neutral and objective during an investigation of an incident
- Quashing rumors and further offensive actions by coworkers immediately after the incident occurred
- Appropriately disciplining the harasser after the conclusion of any investigations
How Can Employers Discipline a Harasser?
Disciplinary action for sexual harassment may range from reprimand to permanent dismissal. Managers/supervisors should be aware that the implementation of discipline could cause other employees to become angry or resentful, which could include retaliation against the victim.
While disciplining someone under these hostile conditions may be difficult, it is absolutely appropriate and necessary. A very clear “zero tolerance” message must be sent to all employees to ensure their understanding that sexual harassment conduct is not permissible.
Is Complimenting a Co-Worker Sexual Harassment?
Generally, it is acceptable for a coworker or even a supervisor to compliment a colleague in the workplace. Telling someone they look good today or complimenting a new piece of clothing is generally considered fine. It is, however, inappropriate if the comment is accompanied by a leering stare and/or a whistle, is continually given to only one particular person or is accompanied by a sexualized innuendo or behavior. Any of these actions may be deemed as sexual harassment. For example, saying to someone, “Hey baby, you are sure looking fine today,” is unacceptable harassing behavior.
Is Dating a Co-Worker Sexual Harassment?
Consensual dating at work is generally permissible. However, awkward situations can occur. For example, if the relationship falls apart and the coworkers are still forced to work around each other on a daily/regular basis, work-related interactions could become negatively affected by the failed relationship, and sexual harassment could occur in the aftermath.
Is Dating a Supervisor Sexual Harassment?
Consensual dating of a supervisor is also permissible but is rarely advisable. Such relationships often give the perception (at least) of a conflict of interest and that the supervisor is “playing favorites.” To counter this perception, supervisors have been known to overcompensate by giving too much work, for example, to his/her partner thus treating the partner unfairly.
Again, the break-up mixed with constant daily contact may lead to sexual harassment, (e.g., if one party continues making advances in the workplace in attempts to save the relationship or makes a negative sexual comment in anger about the former lover. Because the implications are great and the potential complexities are many, dating in the workplace should proceed only after careful consideration of the potential problems.
What Can I Do If I Experience Sexual Harassment?
While each person needs to decide the best plan for him or herself, many individuals have found informal action facilitates the fastest resolution with the fewest complications. You can start with telling the person involved to stop the behavior. Try to be as clear as possible. (e.g., “It makes me uncomfortable when you rub my shoulders, please do not do this.”)
If this does not work, you should consider putting it in writing, and telling the person what conduct you find offensive and what action you will take if it continues.
If none of the above works, tell your supervisor (unless he or she is the offender) or a human resource person in your organization (i.e., file a complaint). Check to see if your organization has a mediation or informal complaint resolution process.
What Should I Do If I Experience a Sexual Assault, Sexual Violence, or other Criminal Acts?
If you experience sexual harassment that rises to the level of violence or assault, you should immediately contact law enforcement. Please visit the California Attorney General’s webpage on Sexual Violence at https://oag.ca.gov/workplace-sexual-harassment for more information about sexual violence and available resources for victims of such violence.
I am a Supervisor and Have Received a Complaint of Sexual Harassment from an Employee? What Should I Do?
If you are an employer or supervisor who has been advised of sexual harassment occurring in your workplace, you should first reassure the employee that you appreciate being informed about any problems, that you will investigate, and that you will follow up. It is difficult for employees to come forward regarding sexual harassment, as many fear retaliation from the harasser or being ridiculed, ostracized, or otherwise “left out” by their coworkers. It is even harder when the employee coming forward is the victim and has to expose something very personal to their supervisor at the place where they earn a living.
To put the employee more at ease, explain all of the options the have at your company (e.g., formal investigations and reporting, informal handling of the matter and mediation). The complaining employee should be informed of resources such as counseling that may be available to him or her. All complainants should be made aware that retaliation of any form against them will not be tolerated and will be subject to discipline. You should periodically check with the complainant employee to ensure that the harassment has ceased and that no retaliation has ensued.
The spectrum of disciplinary actions an employer should consider in response to allegations of sexual harassment should range from reprimand to permanent dismissal — based on the conduct. Appropriate discipline sends a clear “zero tolerance” message to all employees. Eventually, all parties will understand that sexual harassment conduct is not permissible.
In addition to coworkers, supervisors are also responsible for ensuring that their employees are not sexually harassed by the public, clients, or vendors. All managers and supervisors should inform their employees that such conduct will not be tolerated and that they should immediately report any sexual harassment from the public, clients, or vendors. If the harassment is from a customer, you must still take appropriate action within your control to ensure that the offensive behavior stops.
If you believe you have been the victim of sexual harassment or if you are an employer in California who has questions about the state’s laws on sexual harassment, contact the knowledgeable and experienced team of employment attorneys at Perkins Asbill today. To schedule a consultation, please contact us at 916-446-2000.