All individuals in the workplace should be afforded a safe environment free from hostility and mistreatment, whether they are workers, supervisors, customers, or contractors. Sexual harassment is among the most troublesome occurrences in workplaces, and much of it is cast aside or swept under the rug.
Too often, perpetrators are able to carry out the harassment again and again with no fear of repercussions. If you have been sexually harassed at your job and you wish to take legal action, you should know the best path to take and the proper steps to follow to ensure success for your claim. Our team at Employment Attorney Group has handled numerous sexual harassment claims throughout the years, and we want to ensure that you know all the necessary information you need.
What is sexual harassment?
Sexual harassment consists of unwelcome sexual advances from individuals at your job, solicitation of sexual favors or acts, or other sexual conducts (physical or verbal) that interfere with the safety of the workplace and create a hostile job environment. In many cases, individuals are uncertain how to tell if an action is sexual in nature and whether or not it would qualify as harassment.
Some examples of sexual harassment include the following:
- Derogatory, racy, or suggestive statements, jokes, comments, slurs, and conversations
- Unwarranted or unwanted touching, such as neck rubs, waist-holding, hand-holding, slaps or pats on the butt, brushing or feeling other parts of the body, tight hugs, and more
- Propositions for sex, sexual favors, lewd photos, and more
- Lewd discussion of sex or prying questions
- A proposed trade of employment, benefits, promotions, bonuses, or any other kind of perk for sex or sexual favors
- A promise or threat to cut or reduce your benefits, pay, salary, benefits, or other conditions of your employment if you reject a sexual advancement
- Termination or loss of your job or other benefits upon complaining to a superior or other outlet about the sexual harassment
- Staring, leering, and other gestures that may make you uncomfortable
- Outward display of or gifts of sexually suggestive photos, pictures, cartoons, videos, and more
- Someone who refuses to move out of the way or who blocks you from leaving
There are many more examples of sexual harassment that occur each day. If you feel that you are the victim of such treatment, you should seek appropriate legal action. It may be best for you to consult with an attorney to determine whether or not the actions could be escalated to the level of harassment.
What is the legal definition of sexual harassment?
According to California law with the Fair Employment and Housing Act, individuals cannot be targeted at the workplace because of their sexuality, nor can they be specifically harassed or otherwise mistreated in a sexual manner. Specifically, the law states the following:
Title 2, Division 3, Part 2.8, Chapter 6, Article 1, 12940. (j) (4) (C) It is unlawful to harass an employee … because of 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…For purposes of this subdivision, “harassment” because of sex includes sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions. Sexually harassing conduct need not be motivated by sexual desire.
What kinds of sexual harassment are in the workplace?
There are two kinds of sexual harassment that can occur in the workplace. The first, known as “quid pro quo” harassment, must take place between a superior and an underling. The superior must attempt to bestow preferential treatment or rewards to the target. The legal requirements are:
- The employee was the recipient of unwelcome sexual demands, comments, advances, requests, and the like
- The sexual advances were issued by a superior of some kind (bear in mind the superior does not need to be the employee’s immediate superior, but any individual with higher authority)
- If the employee denied the requests, some form of retaliation must have arisen from that choice, such as termination, demotion, wage loss, and the like
It is key that the sexual advances be unwelcome, for one, and that there be some form of punishment. The threat of punishment by the superior does not result in “quid pro quo” harassment. That is, if the superior merely threatens to fire the employee but does not actually do so, there is a missing third element in the requirements.
The second form of sexual harassment involves a hostile workplace environment. This is sexual harassment that essentially disrupts a workplace and makes it offensive or difficult to work in. it can fulfill the previous type of harassment as well, and it can also involve harassment carried out by numerous types of parties.
For sexual harassment in a hostile workplace, the following criteria must be met:
- The employee received unwelcome sexual statements, actions, advancements, or other conduct
- The harassment is related to the sex of the employee
- The harassment is severe enough to affect the worker’s employment conditions or abilities and thereby creates a hostile workplace
The sexual harassment must NOT be occasional or sporadic, (or happening every once in a while or few months), isolated (a single incident), or trivial (an overhead dirty joke will likely not meet the terms of harassment).
Who can sue for sexual harassment?
Sexual harassment can occur to anyone at a worksite, and therefore, any victim can sue. Let’s examine each scenario.
Workers can sue the company if the company did not provide ample documents outlining harassment and the protocol to follow, did not protect the employees in any way, did not take appropriate action to prevent it, refused to acknowledge the harassment, or allowed individuals with a history of harassment to continue working despite claims and complaints. If the company had nothing to do with the harassment, the employee can sue the perpetrator. The perpetrator may be a superior, a coworker, or another individual at the job.
Nonemployees can also sue if there is sexual harassment at a worksite. For example, patients in hospitals can sue if doctors harass them, or interns can sue if they are at jobs where they are not paid. Volunteers, potential job applicants, contractors, and more can all sue for sexual harassment.
What steps should I take to file a sexual harassment claim?
In order to file a sexual harassment claim, you should follow these steps:
- Get proof of the harassment by taking photos, recording statements, making copies of messages, and more
- Write down in detail the harassment and its history
- Get witness testimony, coworker statements, and other bystander perspectives if possible to bolster your claim
- File a complaint with the Human Resources department at your job and make copies of all interactions and exchanges
- File a complaint with the Department of Fair Employment and Housing (DFEH) to ensure an investigation will occur
- Do not accept any offers from your employer if they try to bribe you to not pursue other actions
- Hire an attorney to handle the nuances of the lawsuit
Your attorney can file the letter for you and take the next steps.
What is the compensation for a sexual harassment lawsuit?
A sexual harassment lawsuit can result in various types of compensation for your mistreatment. The employer can be made to pay out the following:
- Loss of income from the past and future for any wages, salary, benefits, bonuses, and more that you could not earn or that were wrongfully reduced or cut
- Reinstatement into your old position (although many individuals refuse to take this option if the harasser is still present, as the workplace may become even more hostile in the future)
- Pain and suffering damages for emotional turmoil, mental distress, anxiety, PTSD, and more
- Punitive damages against the employer if the conduct was grossly negligent or the harassment was condoned or intentional
- Company-wide changes in policies or practices, but this may be for more peace of mind as opposed to monetary damages
What is the statute of limitations to file a sexual harassment lawsuit?
In California, the statute of limitations to file a sexual harassment lawsuit is 1 year from the date of the incident due to the presence of the DFEH. This is a state-run agency and trumps the EEOC, a federal agency, whose statute is 180 days. You do not have a lot of time to sue, so you should ensure that you have the correct evidence and path immediately.
Additionally, the statute of limitations can be reduced or extended, depending on the circumstances of your situation. For example, if the employer leaves the state, the statute would not begin to count down and would remain frozen until he returns. On the other hand, if you are attempting to sue a government entity or business, you have only 90 days from the date of the incident to take legal action.
Needless to say, many victims of sexual harassment do not get the legal help they need in time. They may not know when their statutes of limitations run out or how much time is left for them to file a claim.
It is imperative that you acquaint yourself with the numerous laws of sexual harassment, read your company’s policies on sexual harassment, and take appropriate action in case you are targeted by an individual at your workplace.