Laws and Statutes in California for Sexual Harassment
For those who have faced sexual harassment in the workplace, you are not isolated in your experience. Instances of sexual harassment are prevalent among employees in Los Angeles, San Francisco, and across the entire state.
Based on a recent study by the EEOC (Equal Employment Opportunity Commission), one in four women and one in five men have encountered sexual harassment.
A simple perusal of news articles or a search for #metoo reveals countless stories of deplorable behavior, much of which qualifies as sexual harassment in professional settings. It’s crucial to recognize that sexual harassment in the workplace is illegal.
In this article, the California employment lawyers at Winer, Burritt, & Scott, LLP will delve into the specifics of California’s sexual harassment laws. If you have questions, please contact us online today or call (415) 212-4932 today for more information.
What is California Sexual Harassment?
California Sexual Harassment is defined by state laws as any conduct or behavior of a sexual nature that results in a work environment characterized as hostile, intimidating, or offensive based on an individual’s sex. It is crucial to emphasize that even a singular severe incident falls under the legal definition of sexual harassment.
If you encounter any of the following within the workplace:
- Derogatory comments, slurs, epithets, or jokes.
- Unwanted physical contact, such as back rubs, butt pats, pinching, or “accidental” brushes against various body parts.
- Unwanted sexual propositions.
- Discussion of sexual acts.
- Offers of employment or other benefits in exchange for sexual favors.
- Threats to reduce hours, benefits, pay rates, or negatively impact employment conditions in response to refusing a sexual request.
- Retaliation, such as loss of employment or benefits, following a harassment complaint.
- Leering or rude gestures.
- Displaying or “giving” sexually suggestive objects, pictures, cartoons, or posters.
- Graphic comments, sexually degrading words, sexually suggestive or obscene messages, or invitations.
- Impeding or blocking an individual’s movements.
These behaviors collectively constitute California sexual harassment. At the federal level, Title VII of the Civil Rights Act of 1964 prohibits sexual harassment.
Additionally, the California Fair Employment and Housing Act (FEHA) serves as the primary state-level legislation addressing sexual harassment. Under both Title VII and FEHA, sexual harassment is recognized as a form of employment discrimination, encompassing the categories of “quid pro quo” and “hostile work environment.”
Sexual Harassment – Quid Pro Quo
Quid pro quo, a Latin expression signifying “this for that” or “something for something,” embodies the concept of a transaction. In the context of harassment, quid pro quo harassment unfolds when an individual predicates your employment hiring, ongoing tenure, advancement, or entitlement to benefits on your compliance with sexual advances or other forms of sexual behavior.
Quid pro quo harassment may manifest as either an enticing proposal or an intimidating ultimatum. This category of sexual harassment is deemed significant enough that even a singular occurrence can lead to legal consequences.
Hostile Work Environment Sexual Harassment
Sexual harassment in the form of a “hostile work environment” arises when the offensive behaviors are so pervasive or severe that they significantly change the conditions of employment, unreasonably disrupt work, or create an intimidating, hostile, or offensive atmosphere.
It’s important to note that one can be a victim of a hostile work environment even if the behaviors are not directly aimed at them. A single egregious act can be deemed severe enough to be unlawful, while less severe behavior may become unlawful when it becomes pervasive over time.
The legal assessment of “hostile work environment” sexual harassment involves both objective and subjective components.
Objectively, the behavior must be of a nature that a reasonable person in the victim’s position would find offensive, hostile, or abusive. Simultaneously, there must be evidence that the behavior has subjectively caused the victim emotional distress, affecting their ability to perform their job or interfering with their well-being.
When evaluating the severity of the conduct, the frequency of the behavior, and the surrounding circumstances, courts consider these factors to determine if the actions were sufficiently hostile, offensive, and abusive to constitute sexual harassment. The inquiry is typically fact-specific, recognizing the unique circumstances of each case.
While federal and state laws both address quid pro quo and “hostile work environment” sexual harassment, variations exist in their application.
For instance, California state law covers all private, state, and local employers, whereas Title VII of the Civil Rights Act of 1964 applies only to employers with fifteen or more employees. Generally, California’s Fair Employment and Housing Act is considered more protective of employees, making it a robust legal framework for combating sexual harassment in the state.
California Fair Employment and Housing Act
California’s Fair Employment and Housing Act (FEHA) prohibits the harassment of employees based on various factors such as race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status (Section 12940).
The California Department of Fair Employment and Housing (DFEH) is responsible for investigating and prosecuting instances of sexual harassment and other forms of discrimination in the state. The procedural regulations outlined in Title 2 of the California Code of Regulations establish additional rules that govern employers’ obligations to maintain a workplace free of sexual harassment.
According to these regulations, employers have an “affirmative duty to take reasonable steps to prevent and promptly correct discriminatory and harassing conduct” (Section 11023(a), emphasis added). In simpler terms, employers are required to establish a work environment that is devoid of sexual harassment and other employment practices prohibited by FEHA. They are also required to establish a policy that addresses the prevention of harassment, discrimination, and retaliation.
This policy is required to:
- Exist in Writing
- Identify Protected Classes: A “protected class” refers to a category of people shielded from discrimination based on a specific shared characteristic.
- Clearly state that the law prohibits sexual harassment not only by supervisors and managers but also by coworkers and third parties in the California workplace.
- Outline a Complaint Handling Process:
- Address complaints promptly.
- Prioritize confidentiality to the fullest extent possible.
- Respond empathetically to the individual filing the complaint.
- Assure an investigation is conducted by qualified personnel.
- Document the investigation, tracking progress and outcomes.
- Implement appropriate remedial actions.
- Ensure timely closure of the complaint.
- Provide Reporting Options: Include alternative reporting avenues for employees, such as a complaint hotline, an ombudsperson, or direct contact with DFEH or the EEOC, beyond reporting to their immediate supervisor.
- Mandate Supervisor Reporting: Instruct supervisors to report harassment complaints to a designated representative, such as a human resources consultant.
- Guarantee Fair, Timely, and Thorough Investigations:
- Ensure due process for all parties involved.
- Convey that reasonable conclusions will be drawn based on collected evidence.
- Address Confidentiality: Clarify that confidentiality will be maintained to the extent possible, though complete confidentiality during the investigation may not be guaranteed.
- Specify Remedial Measures: State unequivocally that, should misconduct be found, appropriate remedial measures will be taken by the employer.
- Emphasize Non-Retaliation: Communicate that employees will not face retaliation for filing a complaint or participating in a workplace investigation, fostering an environment of trust and openness.
Employers are obligated to guarantee that every employee is familiar with the company policy
This can be achieved by furnishing a printed copy accompanied by an acknowledgment for the employee to sign and return. Alternatively, employers may choose to dispatch the policy via email along with a return acknowledgment form. Posting updated versions of the policy on the company’s intranet site, complete with a tracking system to ensure that all employees have both read and acknowledged receipt, is another viable option.
Furthermore, employers can cover policy discussions either during the hiring process, in a new employee orientation session, or through any other means that guarantee employees’ receipt and comprehension of the policy.
For employers whose workforce includes at least ten percent of non-English speakers at any given facility, it is mandatory to provide a translated version of the policy in the relevant language.
Additional stipulations apply to employers with fifty or more employees. Such employers must furnish sexual harassment training specific to California to all supervisory employees within the initial six months of assuming supervisory duties.
Supervisors are required to undergo retraining at least once every two years.
While the absence of California sexual harassment training doesn’t automatically render an employer responsible for such misconduct, it can adversely impact the employer’s defense capabilities.
In failing to educate supervisors, an employer may find it challenging to assert that it has diligently taken all necessary measures to prevent sexual harassment in the California workplace.
Who bears responsibility for sexual harassment claims in California?
Under the laws of California, an employee who engages in harassment is personally accountable for damages inflicted on the victim, regardless of the employer’s knowledge or awareness of the harassment.
Employers assume “strict liability” in cases where harassment is perpetrated by a supervisor or the employer themselves. Consequently, if the victim’s supervisor is the harasser, the employer is obligated to compensate the victim for damages, irrespective of the employer’s knowledge or corrective actions.
Additionally, employers bear liability for damages if they were aware or ought to have been aware of the harassment but failed to promptly and appropriately address the situation.
It is crucial to highlight that California law does not provide for a standalone cause of action under the Fair Employment and Housing Act (FEHA). Therefore, initiating a lawsuit is not the immediate recourse. Instead, one must initiate an administrative complaint with the California Department of Fair Employment and Housing (DFEH) and secure a right-to-sue notice.
Only upon the DFEH’s decision not to pursue a civil action within 150 days of the complaint filing, and subsequent notification to the complainant, can the individual request a right-to-sue notice. Legal action can only be taken after obtaining this notice.
What options do individuals who have experienced sexual harassment in California have for seeking remedies?
Victims of sexual harassment in the many regions of California possess the right to seek financial compensation to redress their losses.
In the event of a successful claim, you may be eligible for the following remedies:
- Compensation for emotional distress,
- Hiring or reinstatement,
- Back pay or promotion, and
- Implementation of changes in the employer’s policies or practices.
Should you choose to file a civil lawsuit and emerge victorious, the court may also grant reasonable attorney’s fees and costs, including those associated with expert witnesses.
In exceptional circumstances, punitive damages may be an option, particularly when an employer is found to have committed a particularly malicious or reckless act of discrimination. Additionally, punitive damages may be applicable if the employer is proven to have engaged in malice, oppression, or fraud.
Allocation of punitive damages under FEHA and establishes the criteria for determining “malice,” “oppression,” or “fraud” as stated in the California Civil Code Section 3294.
- Fraud involves an “intentional misrepresentation, deceit, or concealment of a material fact” with the purpose of “depriving a person of property or legal rights or causing injury.”
- Malice refers to “conduct designed to cause injury” or “despicable conduct carried out with a deliberate and conscious disregard for the rights or safety of others.”
- Oppression is defined as “despicable conduct subjecting an individual to cruel and unjust hardships in conscious disregard of their rights.”
By federal law, Title VII imposes limitations on punitive damages based on the size of the employer. For instance, employers with fifteen to a hundred employees are capped at a maximum of $50,000 in damages, while those with 500 or more employees may be exposed to punitive damages reaching up to $300,000.
What to Take Action on if You’ve Experienced Sexual Harassment in California
ENSURE YOU ARE AWARE OF YOUR RIGHTS
It is essential to recognize and understand your rights as an employee. Your employer is obligated to maintain a workplace free from sexual harassment and to promptly address any incidents through appropriate corrective measures.
FAMILIARIZE YOURSELF WITH YOUR EMPLOYER’S CALIFORNIA SEXUAL HARASSMENT POLICY
According to the California Code of Regulations (2 CCR § 11023), employers are mandated to have a sexual harassment policy and ensure that employees are informed about it. This policy should outline the reporting process for employees to follow in case of harassment.
REPORT ANY INCIDENT(S)
If you experience sexual harassment, adhere to your employer’s policy procedures when reporting the incident. Whenever possible, submit a written report or follow up with written documentation of your report.
If you choose to convey your complaint via email, make sure to request both a “delivery” and “read” receipt. Additionally, ensure that you retain a copy of your initial complaint along with all ensuing correspondences related to the matter.
If bringing the complaint to your employer does not result in a resolution of the issue:
THOUGHTFULLY CONSIDER SUBMITTING A GRIEVANCE WITH EITHER THE CALIFORNIA DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING OR THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
If your employer’s response to your complaint is inadequate or if you believe you have experienced retaliation for filing a complaint, contemplate initiating a grievance process with either the DFEH or the EEOC. (It’s not necessary to file complaints with both entities.)
When an employer is aware of instances of sexual harassment and neglects to promptly and appropriately address the issue, they become legally liable for compensating you for any damages incurred. Therefore, if you have reported incidents of sexual harassment in accordance with your employer’s policy in California and receive no response to your complaint, your employer may be held legally accountable.
THINK ABOUT CONSULTING WITH A LEGAL PROFESSIONAL
Our team of employment lawyers, located in either our Los Angeles or San Francisco offices, is available to assist you in comprehending the application of federal and state laws to the specific details of your situation.
Engaging an employment law attorney can provide guidance on understanding your available choices, initiating a California sexual harassment complaint, discerning relevance, and assessing the feasibility of pursuing a lawsuit.
While contemplating your options (such as deciding whether to stay or leave), a legal professional can offer insights into how various courses of action may impact your case positively or negatively.
GIVE CAREFUL THOUGHT BEFORE SHARING ANY CONTENT ON SOCIAL MEDIA PLATFORMS.
Before opting to disclose every detail on social media, bear in mind that any posts related to your situation can be accessed by an employer or defendant. Such information may be exploited in an effort to undermine your credibility, raise doubts about your narrative, and question the extent of the damages you’ve endured.
While conversations with attorneys and health professionals remain confidential, ordinary discussions with friends, family, co-workers, and on social media are typically not considered confidential or protected.
Moreover, openly sharing the specifics of your interactions with your lawyer and their advice can compromise the special confidentiality protections afforded to such communications.
Actions to Avoid If You Experience Sexual Harassment in California
CAUTION: DO NOT DELETE OR DISPOSE OF EVIDENCE RELATED TO HARASSMENT
Naturally, your initial inclination might be to remove, delete, or discard any offensive messages, notes, texts, or emails. However, it is crucial to resist acting on that instinct.
These offensive expressions, images, and texts serve as vital evidence supporting your claim and will play a significant role in any potential investigation or legal proceedings.
Not only should you preserve such evidence, but you should also document details about the incidents, noting when and where they occurred, and identifying any potential witnesses.
It is advisable to document this information as promptly as possible after each event. In cases of recurring harassment, repeat this process for each incident and store your notes in a secure location. Fortunately, in our current era, saving and preserving evidence has become relatively straightforward. Taking notes can be as simple as using your phone to take pictures with a time and date stamp.
However, exercise caution when considering audio recordings of conversations, as California follows a “two-party consent” policy. Recording private conversations or telephone calls without the consent of all involved parties is a crime in California. This restriction extends to video recordings that include audio, with few exceptions.
One notable exception is the ability to record a police officer during the performance of their official duties without their consent. Generally, though, unless you have obtained consent, it is advisable to refrain from recording others.
AVOID DELAY: ACT PROMPTLY
Under California law, it is imperative to submit a complaint to the DFEH within one year from the latest incident of harassment or retaliation. Additionally, there are specific time constraints for filing a complaint with the EEOC.
Typically, the EEOC sets a 180-day (six months) deadline for filing a complaint. However, due to California’s distinct anti-discrimination legislation, the federal EEOC time limit for submitting a sexual harassment complaint is prolonged to 300 days in the state of California.
For those inclined to adopt a “wait and see” approach regarding potential improvements, this may not afford much time.
PROHIBITED: RETALIATION IS NOT PERMISSIBLE.
If you report instances of sexual harassment in California and face retaliation from your employer, such retaliatory actions are deemed even more egregious under the law.
DON’T ACCEPT THE FOLLOWING AS EXCUSES FOR INACTION:
- “He/she told me he is not even attracted to you so that behavior can’t be sexual harassment.” According to California law, “harassment” due to sex encompasses not only actions driven by sexual desire but also includes gender-based harassment and harassment related to pregnancy, childbirth, or related medical conditions. The law explicitly states that “Sexually harassing conduct need not be motivated by sexual desire.”
- “The person you are complaining about is not one of our employees, so we can’t do anything about it.” Employers are obligated to provide a workplace free from sexual harassment. Whether the individual involved is a delivery person or a contractor, their behavior is not excusable. While the extent of an employer’s control over nonemployees is a factor in determining liability, employers must still take immediate and appropriate corrective action upon learning of instances of California sexual harassment.
- “You’re just a temp (or intern or contractor) so we can’t do anything.” In California, the term “employee” for sexual harassment purposes includes unpaid interns, volunteers, and individuals providing services under a contract.
- “It was directed at your co-worker, not you. She hasn’t complained, so why does it bother you?” In California, one doesn’t need to be the direct target to complain about sexual harassment. A hostile work environment affects more than just the person at whom the actions are directed. Additionally, various behaviors can create a hostile work environment that may not be specifically directed at anyone.
AVOID: PRESUMING EXCLUSIVITY AS THE SOLE TARGET OF THE PERPETRATOR’S ACTIONS
For an act to qualify as harassment, it needs to be both severe and/or pervasive. What may seem mildly offensive to you could be deeply disturbing to others.
Legally, the conduct must be objectively and subjectively offensive to warrant a harassment claim. You might perceive certain actions as unwise or in poor taste, but they may not necessarily qualify as harassment, leading you to refrain from reporting on your own behalf.
It’s crucial to recognize that the impact of someone’s actions may extend beyond your personal experience.
AVOID: DWELLING EXCESSIVELY ON WHETHER YOU’RE SIMPLY “TOO SENSITIVE” OR “CAN’T TAKE A JOKE.”
California sexual harassment training materials typically lack Hollywood production standards and seldom feature Academy Award-winning actors.
As a consequence, the “slice of life” sexual harassment scenarios depicted in such materials often appear awkward, absurd, or comical.
While certain portrayals of California sexual harassment might elicit uneasy laughter, it’s crucial to recognize that sexual harassment is far from a trivial matter and can inflict serious trauma on its victims.
Despite this, some offenders may dismiss their actions as “just a joke.” In certain instances, it might genuinely be the intention of the perpetrator to be humorous.
Nevertheless, it’s not solely the perpetrator’s intent that holds significance; rather, it’s how an impartial, rational individual would respond and the impact of that behavior that determines whether it qualifies as sexual harassment.
IMPORTANT: DISTINGUISH BETWEEN SEXUAL ASSAULT AND SEXUAL HARASSMENT
If you have encountered unwelcome sexual advances and inappropriate behavior, that’s sexual harassment. However, if you’ve been subjected to non-consensual sexual contact involving force, coercion, or incapacitation, it goes beyond harassment – it’s sexual assault. According to the California Penal Code Section 243.3, sexual assault is a criminal offense.
If you’ve experienced sexual assault or violence, the State of California Department of Justice recommends:
- Call 911 immediately if you or someone else is being assaulted.
- Report incidents of sexual assault to local law enforcement.
- Seek medical attention for appropriate care.
- Consider reaching out to a crisis hotline.
- Seek support from friends, family, and community organizations.
Additionally, you might find valuable information on California sexual harassment through various resources.
Call Winer, Burritt & Scott, LLP — Free Consultation
With more than 60 years of combined experience standing up against workplace sexual harassment in California, our law firm has what you’re seeking. We provide diligent, personalized legal services for victims of all types of job-related sexual harassment and abuse. For a free initial consultation with a San Francisco-based sexual harassment attorney, call (415) 212-4932 or fill out our online form.