Frequently asked questions

Sexual harassment is the unwelcome conduct of a sexual nature that creates an intimidating, offensive, or unsafe environment and undermines a professional work environment. In California, there are two main types of sexual harassment, namely:

• Quid pro quo harassment.
• Hostile work environment harassment.

While both are serious violations of workplace norms, they affect employees differently and impede their ability to do their jobs.

Quid pro quo harassment occurs when the granting of job benefits, including a promotion, raise, or job security, depends on sexual favors being offered. For example, a boss who demands a personal favor in exchange for giving a promotion to a junior exploits their position of authority, thus violating the employee’s rights.

This kind of harassment can be incredibly destructive because the victim is under tremendous pressure to comply out of fear of retaliation or the loss of professional opportunities. In these cases, the power imbalance makes it difficult to refuse, and refusal can have immediate, substantial consequences for the victim’s career.

On the other hand, hostile work environment harassment is a pattern of behaviors that make the workplace unbearable and toxic. This type of harassment is not limited to physical actions. It also includes inappropriate comments, suggestive jokes, or the display of explicit materials. Harassment in the workplace can be non-physical behaviors like sending lewd emails or making inappropriate gestures that the harasser considers harmless fun. However, these actions create a hostile work environment.

When repeated or if they are grave, these actions create an environment where employees feel unsafe or disrespected. The law does not require the perpetrator to have malicious intent. Instead, the law focuses on the effect of the actions on the victim’s ability to work. It does not matter whether the perpetrator was trying to hurt the victim. The resulting discomfort and disruption to the victim’s day job are considered harassment.

California’s Fair Employment and Housing Act (FEHA) protects victims of sexual harassment from experiencing the unfairness of a hostile work environment by allowing them to sue for that unfairness. Employers must respond promptly to complaints, investigate thoroughly, and take action to stop harassment. This legal framework aims to protect employees from harassment and to create a safe and respectful working environment.

Sexual harassment, sexual misconduct, and sexual assault are different offenses, each with distinct behaviors and degrees of seriousness. It is important to differentiate the three since they require separate responses and legal actions.

Sexual Harassment

Sexual harassment, as defined, is unwelcome behavior of a sexual nature that is uncomfortable or hostile. However, this does not always involve physical contact. It can be just as damaging. For example, a manager continually makes sexual comments or jokes that make employees feel uncomfortable. This is sexual harassment.

Sexual harassment is not only limited to employer-employee relationships. It also involves employee-employee relationships. For example, an employee sends inappropriate emails to coworkers despite being asked to stop. At the same time, these non-physical actions are, in a sense, disruptive and intimidating.

Sexual Misconduct

Sexual misconduct is a broader term that includes inappropriate behavior that is typically without the physical force that is involved in sexual assault. Sexual misconduct could include coercing someone into sending explicit images or videos or taking advantage of a power imbalance. In most cases, sexual misconduct is limited to violations of boundaries.

Sexual Assault

The most severe behaviors, including physical contact or coercion, often using force or threats, are most associated with sexual assault. For example, sexual assault is clearly defined if someone forcibly touches or rapes you.

Sexual assault consists of an act of being held down against your will and forced into sexual intercourse. This action goes beyond a workplace harassment issue to a criminal offense, whose punishment is imprisonment and fines.

Unlike the court of public opinion, proof of allegations in legal proceedings requires solid evidence and a legal basis. The courtroom is not the place for the emotions and biases that often drive public judgments. Instead, the burden of proof is on you, the claimant, to prove you were sexually harassed.

If you are going to pursue a claim of harassment, especially in the workplace, you need to be able to prove certain elements. To get a successful outcome, you must understand the following aspects since they are the basis of your case:

Sexual Conduct is Not Required

You do not have to prove that explicit sexual acts took place to make a harassment claim. The law recognizes that harassment can include non-physical behavior, including inappropriate comments, gestures, or sharing offensive materials.

Harassment does not need to involve physical sexual conduct, though it can if someone’s behavior crosses boundaries. The key issue is establishing that the conduct was inappropriate and unwelcome, regardless of whether it was physical or verbal.

The Behavior Was Unwelcome

You have to show that the behavior was unsolicited and undesirable. Not all unwelcome advances require you to say “no” or “stop.” You do not have to say you are uncomfortable for it to be unwelcome. Evidence that the act was inappropriate may come from your body language, facial expression, or the circumstances in which the behavior occurred.

Instead, the context of the situation should be what you focus on: did this make you feel uncomfortable, unsafe, or violated in any way?

Your actions or reactions can communicate that the behavior was unwelcome, even if you did not say anything.

The Behavior Was Offensive Both Objectively and Subjectively

For harassment claims to hold legal weight, the conduct in question must be offensive on two levels:

• Subjectively.
• Objectively.

The behavior must be subjectively offensive to you personally and depend on your experiences, comfort level, and feelings. Moreover, objectively, the behavior must be an offense, as would be judged by a reasonable person in similar circumstances.

The courts will examine whether the behavior was so extreme that it was harassment from your point of view and a neutral observer’s point of view. This dual standard achieves the fairness issue. It protects people while remaining fair enough to limit frivolous claims.

The Conduct Was Severe and Repeated

Harassment cannot be based on one isolated incident unless the incident was extremely egregious. To make your case, you must show that the conduct must have been pervasive and severe enough to create a hostile or intimidating work environment.

A few minor incidents might not be enough to establish sexual harassment, but repeated behavior over time can. Conduct that crosses the line into harassment depends upon the severity of the conduct. Repeated or particularly egregious verbal, physical, or whatever behavior is more likely to be considered harassment. The court will see how the actions impacted your work environment, emotional state, and general well-being.

The Employer’s Actions Resulted in Tangible Harm

You also have to show the conduct resulted in actual harm. Harassment does not just inflict distress. It can inflict real damage. It can include:

• Psychological harm.
• Emotional harm.
• Tangible harm, like lost wages, a loss of professional opportunities, or damage to your reputation.

You may have to prove this harm by showing its impact on your life, perhaps with medical records, witness testimony, or work performance. Demonstrating the harm helps determine the severity of the harassment and its impact on your life, strengthening your case.

If you file a sexual harassment complaint against your employer, you have several options to address the issue. All options have different processes and outcomes, so knowing your options will give you the information to make an informed decision. Below are three primary courses of action you can pursue:

Report the Incident to Your Employer

The easiest and often first course of action is to inform your employer of the harassment. Employers are legally obliged to maintain a workplace free from harassment and to pursue all appropriate action if it does occur. Most organizations have a protocol to deal with these complaints, which may involve submitting a formal grievance or notifying the supervisor or HR (Human Resources) department.

Reporting your harassment internally allows your employer to investigate the matter and take corrective measures. These disciplinary actions include:

• Disciplining the perpetrator.
• Giving them additional training.
• Adopting new policies to prevent other harassment.

Internal resolution can lead to a quicker and less stressful result as the problem is addressed within the organization.

However, keeping track of your communications with your employer is important. When your employer fails to take appropriate steps, this documentation will be used as evidence of further action needed. They do not, however, have to investigate the claim or address the issue immediately. However, your employer must investigate the claim and promptly address the issue.

File a Complaint With an Agency

If you fail to get a satisfactory resolution from reporting to your employer or are uncomfortable reporting it to your employer, you can file a complaint with a relevant government agency. Federal cases of workplace harassment are handled by the Equal Employment Opportunity Commission (EEOC). Furthermore, each state has an agency that may address employment discrimination issues.

Should you decide to file a complaint with the EEOC or a similar state agency, you must do so within 180 days of the harassment. The agency will investigate, collect evidence, and interview witnesses to determine if sexual harassment was committed. The agency might take your case if it finds merit and help you negotiate a settlement with your employer.

A complaint filed with an agency is a formal process for objectively reviewing your claim. It can further result in an out-of-court settlement through mediation or a negotiated settlement. One of the benefits of this route is that it uses a neutral third party who hopefully will stay neutral, ensuring the process is fair. The process is long and can take months for the agency to resolve the matter.

In most cases, the agency will mediate between you and your employer. However, this approach allows both parties to negotiate a resolution, often resulting in a faster and less expensive solution. If successful, mediation can result in a settlement without courts. If mediation is unsuccessful, it may send you a right-to-sue notice and refer your case to court. In these cases, the agency may take legal action on your behalf.

Filing a Civil Lawsuit

If the previous options failed to work or you want to go after your employer with a civil lawsuit for sexual harassment, then you can file a sexual harassment lawsuit against your employer. In a civil lawsuit, you simply take the case to court, where you must provide evidence that the harassment occurred and caused some damage. These damages could include emotional distress, lost wages, and other forms of harm linked to the harassment.

To win a civil case, you must show that the harassment was unwanted and prejudiced the work environment. To get there, you must provide substantial evidence such as:

• Records of the harassment.
• Witness testimony.
• Physical documentation, like emails or text messages.

The better your evidence, the stronger your case.

The advantage of filing a lawsuit is that it can secure you compensatory and punitive damages. It also provides a more definitive resolution if your employer refuses to acknowledge the problem or take corrective action. It is, however, costly and complicated. Thus, legal expertise may be required.

Court proceedings can also take years or even months. They also present new challenges, which, if overcome, can lead to a successful lawsuit that can bring justice and financial redress.

If your complaint progresses to a legal claim, you may be entitled to several types of damages:

• Compensatory damages — These damages are meant to compensate for emotional distress, pain, and suffering caused by the harassment. They also help you cope with the psychological effects of the harassment you have suffered.
• Back pay — If the harassment caused you to lose wages or benefits, you were entitled to recover back pay for the wages you lost because of the misconduct. This pay includes any missed promotions or job opportunities.
• Punitive damages — Punitive damages may be awarded against a particularly egregious harasser. These damages are meant to punish the offender for their actions and prevent future misconduct.
• Attorney’s fees — If you win your case, you can recover your legal costs, including attorney’s fees. It helps reduce the burden of paying out of pocket to pursue a claim.
• Other remedies — In other situations, a court could order compensation as reinstatement to your position, a promotion, or an order for your employer to improve company policies to prevent future harassment.

All options have advantages and challenges, and the best course of action will depend on:

• Your comfort level with the processes.
• The nature of the harassment.
• The potential impact on your career.

It is always best to consult an attorney who can advise you on what to do, how to proceed, and explain your rights.

Third-party sexual harassment occurs when someone outside your workplace, like a customer, client, or vendor, sexually harasses you. Even though the offender is not a direct co-worker or supervisor, your employer is still responsible for providing a safe work environment and for addressing harassment that takes place on your employer’s premises or during business interactions.

You can sue your employer if a third party sexually harasses you. Employers are legally obligated to prevent and deal with harassment from anyone, including from parties outside their company. If your employer fails to act after you report the harassment, they could be liable for failing to provide a harassment-free workplace.

To take legal action, you must demonstrate that your employer:

• Should have known about the harassment, or knew about it.
• Did not take appropriate steps to stop it.
• Allowed the harassment to continue and created a hostile or unsafe environment.

If your employer fails to address the issue, you can formally file a complaint with an organization, including the Equal Employment Opportunity Commission. Alternatively, you can go to court and seek damages. If you have been harassed, you should document your experience and any communications with your employer to help your case.

The statute of limitations for filing a sexual harassment claim in California depends on which path you decide to take. Knowing these deadlines will help you take appropriate action to protect your right to legal action.

If you file a complaint with the California Department of Fair Employment and Housing, it must be filed within one year of the harassment. Filing starts the administrative process that could result in a right-to-sue notice, and you can take your case to court.

Alternatively, if you bypass the administrative route or receive a ‘right to sue’ notice, you have three years to file a lawsuit in California state court, which starts from the date of the harassment. This gives you time to put your case together.

If you file a federal claim under Title VII of the Civil Rights Act, you have 180 days to file a charge with the EEOC. However, filing with a state or local agency like the DFEH can stretch to 300 days.

If you miss these deadlines, you lose the right to pursue legal action.

It is understandable to worry about retaliation, especially termination when you are considering filing a sexual harassment claim. There is an expected fear of facing negative consequences if you choose to stand up against misconduct. However, federal and state laws protect you from retaliation, even if you have filed a claim or participated in an investigation.

Most employers cannot legally punish you for filing a sexual harassment complaint under Title VII of the Civil Rights Act and California’s Fair Employment and Housing Act. It includes actions like:

• Being dismissed.
• Forced demotion.
• Cuts to a salary or any other form of punishment targeted at you for trying to fight for your rights.

These protections are in place to protect you from losing your job or experiencing any other discriminatory action because of reporting harassment.

If your employer retaliates after you have filed a sexual harassment claim, you have legal recourse. You can then file a retaliation claim. You must document everything carefully, including dates, communications, and what your employer did or failed to do that might be construed as retaliation.

Even more importantly, if you suspect you are being retaliated against, you should immediately inform your employer. Many companies have policies and procedures to handle complaints. You can also complain to the Equal Employment Opportunity Commission or the California Department of Fair Employment and Housing. They will investigate retaliation claims and can act against employers who break the law.

If you need help with what to do or how to do it, a sexual harassment attorney, familiar with employment law can help you immensely.