California and federal laws prohibit sexual harassment at work and impose severe punishment. When you are a victim of the harassment, you have constitutional rights and a recourse to end the harassment, including lodging a claim against the plaintiff to obtain financial compensation for the losses and harm caused. Nevertheless, you must understand your rights to secure maximum compensation.

At Empower Sexual Harassment Attorneys, we will protect your right to a fair hearing in San Diego. Our sexual harassment attorneys will evaluate your case and present a solid case for maximum compensation. Below is a guide on everything you must know about sexual harassment. 

Legal Definition of Sexual Harassment

The US Equal Employment Opportunity Commission (EEOC) defines sexual harassment as adverse sexual conduct, including inappropriate slurs from coworkers, requests for sexual favors in exchange for employment benefits, and unwanted sexual advances. The harassment does not necessarily have to be sexual. Nevertheless, it must include verbal statements about someone’s sex. The verbal or physical harassment must cause the claimant a hostile or intimidating work environment.

Sexual-oriented physical contact or jokes at work all constitute harassment. Unfortunately, the conduct is rampant, which is saddening. If sexually harassed on the job, do not suffer in silence because you have a legal recourse to end the harassment and obtain financial damages for the harm you have been through.

Sexual Harassment Protection Statutes

The federal and state governments recognize the prevalence of workplace sexual harassment. As a result, the federal government passed Title VII of the 1964 Civil Rights Act, forbidding sexual harassment as a form of discrimination. Title VII sets the basis for sexual harassment claims, even though states, including California, have enacted their laws.

The California Fair Employment and Housing Act (FEHA) prescribes sexual harassment at the state level as harassment based on sex or that is sexual. The harassment could be based on a person’s gender, pregnancy, or medical conditions. When you want to win your case against a harasser or defend the accusations against an alleged victim, you need an attorney who understands state and federal statutes and how to apply them based on your case’s unique circumstances.

You should know Title VII applies to all state and local government agency workers. Labor unions and employment agencies, including those working for the national government, are governed by Title VII. 

When people talk of sexual harassment, they assume that women are usually the victims. However, the truth is that any gender can fall victim. The victim and the accused can be of the same gender. The level of employment of the parties is not relevant to the case. The court focuses on the defendant’s unwanted verbal or physical conduct towards the accuser.

Sexual Harassment Types

Title VII and FEHA recognize two main sexual harassment types that a victim can experience at work. These are:

Hostile Work Environment (HWE)

You can lodge a claim against someone for HWE if:

  • They direct unwanted sexual advances, comments, jokes, or behavior toward you.
  • The harassment is because of your gender.
  • The harassment is pervasive or ubiquitous enough to offend you or create a hostile work setting.

The harassment should not be trivial or occasional. It must be frequent and hostile. When evaluating the evidence, the court considers whether a sober individual in your situation would have felt harassed by the same conduct or if they were in your position.

Unwelcome behavior that creates a hostile work setting includes:

  • Sexual jokes, comments,
  • Suggestive gestures.
  • Sexual propositions.
  • Sharing sexual content or pornography.
  • Inappropriate physical contact.

For instance, Jane feels uncomfortable at work and cannot perform her duties because a colleague, Kelvin, repeatedly looks at her lasciviously or suggestively. Besides, Kelvin, more often than not, directs sexual jokes or slurs towards her. Kelvin’s behavior amounts to HWE harassment because his behavior towards Jane is unwelcome. The conduct is because of Jane’s gender, and it is pervasive or offensive to the extent it affects Jane’s work performance.

Anyone in the workplace, regardless of their position, can engage in this form of harassment. It could be your supervisor, employer, coworker, junior, client, vendor, or contractor. 

Quid Pro Quo Sexual Harassment

Quid pro quo type of harassment happens when someone in a powerful position within your organization accepts harassment in return for acquiring or keeping work benefits or favors. When you decline to perform sexual favors for the boss, they threaten to fire, demote, not hire, or deny you work benefits like a promotion, pay rise, or more favorable work hours.

When proving this harassment type, the elements you must demonstrate are:

  • You were employed by the defendant, applied for work with the defendant, or offered them services.
  • The defendant or employer’s representatives made an unwelcome sexual proposition.
  • These sexual advances create an unfavorable work environment.
  • The harassing conductor caused you harm.
  • The defendant’s harassment was a significant cause of the harm.

In this harassment, the harasser or defendant should be your superior or someone with authority over you. This is the main difference between HWE harassment and quid pro quo. In HWE, the accused can be anybody in your organization, including your underlinings.

Additionally, your case qualifies as quid pro quo if your superior at work acts on their threats after rejecting their sexual requests by denying you work benefits you are eligible for or firing you. Nevertheless, when the boss makes threats but does not act on them, their conduct still qualifies as HWE harassment.

Whether or not you welcome the superior’s sexual advances in return for special treatment is irrelevant to the case. You can have a sexual harassment case even when you are not the one being sexually harassed. If your supervisor gives preferential handling of a colleague for sexual benefits, the actions amount to hostile work-setting harassment regardless of whether the said victim welcomes the propositions. You will argue that the sexual favoritism was detrimental.

For instance, your supervisor engages in sexual favors with many of your colleagues. These sexual favors have seen your colleagues promoted, given pay raises, or given better work hours, but you have been denied the same despite being eligible because the boss does not have a sexual affair with you. Under the circumstances, you can argue that sexual harassment has created a hostile or unfriendly work setting.

Employer Liability

Title VII applies to any employer with at least fifteen employees. Even those companies with fewer employees are subjected to the Act. Therefore, when being recruited to a company, the employer should offer you a handbook copy of their policy to discourage and prevent discrimination, harassment, discrimination, and retribution in the workplace. Once you have received the copy, you should acknowledge the receipt through email or print.

The copy must prohibit harassment of workers regardless of their authority in the work environment. The handbook with the policies should also detail the steps to follow once you lodge a harassment claim against the company. These details should include:

  • A prompt response to the complaint.
  • Document the full investigation and undertake the necessary measures.
  • Assuring you that reporting harassment or involvement in an ongoing investigation of a colleague’s complaint will not result in retaliation.
  • Depending on qualified persons to carefully deal with the complaint to ensure justice is served.
  • Resolving the complaint promptly.

Sometimes, the supervisor you should report a harassment case to could be the one doing the harassment. In these instances, your employer’s policy must offer you other channels of reporting the harassment without going through the supervisor. It should provide for a delegated representative, like human resources.

Additionally, your employer should educate you and other employees about work sexual harassment through the handbook. Besides, employers have a role in ensuring that workers regularly participate in sexual harassment deterrence training if the company has over five workers. Nonsupervisory workers should undergo a sixty-minute training session, while the training for supervisors should last for 120 minutes. The training must also be done in the language employees understand. If at least 10% of the workers are not English speakers, the training should be done in their mother language.

When a worker files a sexual harassment case, and the victim proves that the employer enabled the hostile work setting to exist by not performing the duties provided for under Title VII, the employer is financially liable for the loss or harm suffered by the victim. The court can even impose punitive damages in some cases. Liability in these cases depends on the person who perpetrated the harassment and the employer’s action or inaction to fix the situation.

Sexual Harassment by a Supervisor vs Colleague

Your superiors can engage in sexual harassment. If they do and you report the matter, the employer should take action, like firing, demoting, or suspending the accused person. If none of these actions are taken, the company is liable for the harassment. The employer is held responsible for allowing a hostile work setting. The only way the employer can prove that they do not enable superiors in their company to engage in sexual harassment is by demonstrating that they have taken all the necessary steps to prevent and discourage sexual harassment on the job, including offering training and education and issuing copies of workplace policies on sexual harassment. Further, the employer should show that after the case was reported, they took reasonable steps to remedy it.

Moreover, the employer must demonstrate that the alleged victim unreasonably failed to follow the relevant steps in the handbook stating the employer’s policies for reporting the incident.

When the harasser is a colleague or your junior, the employer will still be responsible if they were aware of or ought to have been aware of the harassment. Nonetheless, if the company took positive steps to fix the situation or deter the same behavior, the court would find that the company was not liable for the harassment.

Retaliation Against Harassment Complaints

The workplace policy on sexual harassment discourages employers from engaging in any action in retribution or retaliation to a complaint. Unfortunately, most victims of harassment believe that bringing forward a complaint will result in some retaliation or revenge. However, if harassed, do not let the fear of reprisals prevent you from coming forward. The policy protects you from retaliation for reporting a complaint.

Before reporting the claim, you should gather evidence in the event of retaliation. Visit the HR office and request your employment information. The personnel file contains all relevant information about your employment and performance for the time you have worked for the company. That way, even when you report the harassment and the supervisor or employer retaliates through a demotion, reduction in duties, or firing, you can prove that the action taken by the company against you was for retribution and was not merited. Also, before the complaint, you should speak to a sexual harassment attorney to gather sufficient proof to support the complaint and, when necessary, show that the company retaliated.

The Government’s Role

Seeking financial compensation from the harasser for the damages caused requires that you lodge a lawsuit through EEOC, the federal entity that enforces Title VII. The entity reviews the evidence provided and further investigates the complaint. If there is solid evidence of sexual harassment on the job, the harasser and their defense attorney will be willing to settle. However, you should bring a civil lawsuit when no settlement is reached. There is a timeline for filing these lawsuits. Therefore, contact an attorney early in the case to ensure that you lodge the lawsuit before the lapse of the timeline provided in the law for filing. If the statute of limitations expires, you relinquish the right to seek compensation from the harasser even when you have a solid case.

Steps to Take After Sexual Harassment

When someone sexually harasses you at work, first let them know that their behavior offends you and that they should stop. Unfortunately, many victims lack the confidence to face their harassers and tell them verbally to stop the behavior. If you are one of these shy people who cannot confront the harasser, you can write them an email, text, or letter discouraging them of the conduct. This kind of response will be easy to document.

If your efforts to discourage the behavior do not yield anything, you should obtain a copy of your employer’s handbook on policies on sexual harassment. Once you understand the steps you should take after a conflict like yours, you can escalate the matter. Nonetheless, before the escalation, you should consult with a sexual harassment lawyer to understand your rights and legal options. After discussing your case with an experienced attorney, you should take these steps:

  1. Report the Incident

Your employer’s policy explains filing steps when reporting sexual harassment events. Follow these steps and record the report. Ensure you provide the details of individuals who could have witnessed the harassment. Also, keep copies of any conversations with the accused. You should prioritize reporting because failure to do so means the employer was unaware of the harassment and, hence, not liable.

  1. Collect Evidence

You should document every step after the harassment, including collecting evidence of the alleged behavior. Note down the date, time, and place of every harassment incident, including how you responded to the advances and the actions that followed after your responses. No details are too small in these claims. Every piece of information can strengthen your case. You will have a much stronger case if you document proof showing that you notified the harasser that their conduct or words were offensive but persisted with the same. This evidence helps demonstrate that the harasser knew their actions or comments were offensive.

The evidence you should gather includes the following:

  • Written memories of the alleged harassment incidents.
  • Lewd videos, images, voicemails, text messages, emails, or letters from the harasser.

However, you must know that recorded conversations between you and the harasser will not be admitted as evidence in the case unless you have their consent. 

  1. Keep Off Social Media

If you have a good employer that cares about the welfare of their employees, they will treat your complaint seriously and take measures to remedy the problem. The standard measures are:

  • Firing or terminating business dealings with the accused or harasser.
  • Relocating you to an office or branch where there is no interaction with the accused or harasser.
  • Re-allotting you off the task where you engage with the accused.

Filing a Claim

Not all employers will take action after a sexual harassment report. If your company is one of these bosses, you can escalate the issue by lodging an administrative claim to EEOC or the California Civil Rights Department (CRD).

The statute of limitations for CRD complaints is 36 months since the last sexual harassment event. However, you can still obtain a ninety-day extension of the timeline if you find out that the behavior by a colleague in the past amounted to sexual harassment.

The timeline for filing complaints with EEOC is 180 days from the latest harassment incident. If you lodge the same complaint with CRD, the timeline can be increased by 120 days.

Once these entities receive your complaint, they will review it and the evidence provided. Afterward, they will perform independent investigations to corroborate the facts you provided. The next step will be to sit down with the opposing sides for mediation to settle the matter. Mediation is encouraged because it saves time, and no court fees are incurred. Nevertheless, when mediations fail, you can sue the harasser.

Suing the Harasser

When mediations fail, the government entity handling your complaint will grant you the right to file a lawsuit, meaning you can continue with the claim and bring a conventional lawsuit to civil court.

You have twelve months from issuing these rights to sue the harasser or employer. Defendants in these cases are usually large companies, with big law firms representing them. Therefore, do not fight them alone. Speak to an experienced sexual harassment attorney to build a strong claim and avoid bullying from the accused.

Our attorneys have years of experience handling these cases and will secure you a fair settlement by submitting a detailed demand letter to your employer. No employer wants to tarnish their name with allegations of sexual harassment. Therefore, your employer will be ready to negotiate and settle if you have a solid claim. Nevertheless, if the employer is an EPLI insurance coverage holder, the insurer will handle the claim on their behalf.

These lawsuits are complex to win, but you increase your chances of fair compensation with proper legal representation. Lawsuits where your supervisor or superior is the harasser are easy to win because the employer is usually strictly responsible for the behavior of these employees. Under strict liability, you only have to demonstrate the harassment happened to receive damages. The court does not require you to prove negligence.

However, in suits involving coworkers or third parties, you must show the employer was aware or ought to have been aware of the behavior or failed to remedy the situation to receive compensation. If you cannot prove the employer’s negligence, you can sue the harasser directly.

You should know that you maintain the right to sue even after you waive these rights and agree to resolve such matters through arbitration.

Available Financial Compensation

Sexual harassment victims are entitled to the following compensatory damages:

  • Physical pain.
  • Mental anguish.
  • Dented reputation.
  • Lost wages after missing out on employment benefits like sick time, bonuses, and promotion

The court will compensate you for the legal fees, court expenses, and expert witness costs.

If your company acted with malice, was oppressive, or engaged in fraud, the court will award punitive damages to discourage similar behavior in the future.

Find an Experienced Sexual Harassment Attorney Near Me

If you believe harassment is happening at work, do not hesitate to speak to a profound attorney to explain your situation and find a legal recourse. At Empower Sexual Harassment Attorneys, we will provide the resources and advice you require to understand your rights, know how to file a complaint, and understand the available damages. Call us at 619-800-7245 to discuss your case in San Diego.