Sexual Harassment in the Workplace
What is sexual harassment in California? Although most women know when they are being harassed, sexual harassment in the workplace has a precise legal meaning. So what is the definition? If you are experiencing offensive conduct by a co-worker what should you do? Does it qualify as a hostile work environment? What if you’re fired after you complained about sex harassment? Should you contact a lawyer? This webpage unpacks and answers all the basic questions that employees may have.
On this webpage, we cover the following topics:
- What is sexual harassment? The legal definition
- Laws governing sexual harassment at work
- Facts and statistics about sexual harassment
- Types of sex harassment
- What to do if you experience sexual harassment at work
- Hiring an lawyer if you’re a victim
What is Sexual Harassment? The Definition According to the DFEH, EEOC, and the UN
What is Sexual Harassment in California? CA Department of Fair Employment and Housing defines sexual harassment as:
Unwanted sexual advances, or visual, verbal or physical conduct of a sexual nature.
The harassment becomes illegal when the actions or words affects an employee’s employment. The effects may be:
- Interference with his/her work performance
- Creation of an intimidating, hostile or offensive work environment
- Linked to the grant or denial of job benefits or advancement
What is sexual harassment to the U.S.? According to the EEOC, sexual harassment is a form of sex discrimination. It violates Title VII of the Civil Rights Act of 1964. The sexual harassment definition includes unwelcome sexual advances, asking an employee for sexual favors, physically or verbally conducting behavior of a sexual nature.
What is sexual harassment to the world? Believe it or not, but even the United Nation gives us a definition for sexual harassment:
[It] is a behavior. It is defined as unwelcome behavior of a sexual nature.
This definition has no legal precedent in the U.S. or California, but its fun to know it regardless.
Laws Governing CA Sexual Harassment in the Workplace
Title VII of the Civil Rights Act of 1964 prohibits discrimination based on religion, race, ethnicity, national origin and sex, including sexual harassment in the workplace. Sexual harassment can be in the form of creating a hostile work environment or an economic quid pro quo. Under California FEHA, there is no distinction between the two, as harassment is defined by the California Supreme Court as:
conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives. [Reno v. Baird]
The quote below is typically how the U.S. Supreme Court would distinguish between the two types:
Cases based on threats which are carried out are referred to often as quid pro quo cases, as distinct from bothersome attentions or sexual remarks that are sufficiently severe or pervasive to create a hostile work environment. The terms quid pro quo and hostile work environment are helpful, perhaps, in making a rough demarcation between cases in which threats are carried out and those where they are not or are absent altogether…. [Burlington Industries, Inc. v. Ellerth]
Sexual Harassment Definition: Hostile work environment
Sexual harassment that creates a hostile work environment is that of which the sexual conduct is done has the effect of interfering with the victim’s work performance or to create an intimidating, hostile, or offensive working environment.
Sexual Harassment Definition: Quid pro quo
Quid pro quo translates to “a favor for a favor.” What this means in terms of sexual harassment in the workplace is that an employee’s work status is dependent on his/her submission or rejection of sexual requests or favors. For example, a manager may ask a subordinate employee for a sexual favor in exchange for a promotion or a raise.
These laws apply to companies, employment agencies, labor organizations and the federal government. The employer is liable for the sexual harassment if:
- There was employment action against the victim (termination, withholding benefits or promotions, etc.)
- If it knows or should have known about the sexual harassment and did nothing to stop it from happening again. The employer has the responsibility of creating a safe environment for all employees
Facts and Statistics About Sex Harassment
In a 2008, the Association of Women for Action and Research (AWARE) addressed the issue of sexual harassment by collecting data from 500 respondents and 92 companies. These are the results of the survey given:
- The victim and harasser can be either a man or a woman and the victim does not have to be the opposite sex of the harasser. Both men and women are likely to be victims of sexual harassment
- About 54% of sexual harassment occurrences happened in the workplace
- About 27% of respondents said that they were harassed by their colleagues, while 17% said that the harassment was done by a superior in the workplace
- 79% of victims are women and 21% were men
- 12% were threatened to be terminated if they did not give in to the harasser’s sexual requests
- Industries with high levels of sexual harassment incidents, in no particular order, are: banking and finance; sales and marketing; hospitality; civil service; and education, lecturing and teaching
Other Facts and Statistics:
- 75% of people who experience sexual harassment do not report it (The Guardian)
- The National Violence Against Women Survey found that more than 19% of adult female rape survivors and more than 9% of adult male rape survivors said their victimizations caused them to lose time from work (National Sexual Violence Resource Center (NSVRC))
- One-third of female physicians reportedly have been a victim of sexual harassment in the workplace (NSVRC)
Types of Harassment
What is sexual harassment like in the workplace? Typically, there are 2 types of sexual harassment that are found in the workplace: hostile work environment and quid pro quo. These examples are not conclusive of cases brought to court nor is this a complete list of all of the possible scenarios of sexual harassment.
Hostile Work Environment
Examples of verbal types of sexual harassment
- Telling sexual jokes or stories at work
- Saying something sexual about another person’s body
- Catcalling or making kissing sounds, howling or other offensive sexual gestures
- Repeatedly asking someone on a date after he/she has said no
- Starting and spreading rumors in the office about a person’s sex life
Examples of non-verbal types of sexual harassment
- Following or stalking a person
- Showing or displaying visuals that are sexually suggestive
- Licking lips, blowing air kisses or winking are facial expressions that are also found to be sexual harassment
- Blocking a person’s path or cornering them at work
- Looking a person up and down in a sexually suggestive manner
Examples of physical types of sexual harassment
- Giving a massage on a person’s neck/shoulders at work
- Touching a person’s body, hair or even clothing
- Hugging, kissing, stroking, or patting a person
- Standing too close or crushing up against someone
Quid Pro Quo
Examples of quid pro quo types of sexual harassment
- Requesting an employee for sexual favors in exchange for access to healthcare benefits
- Offering sought-after assignments to employees who are willing to comply to a sexual demand
- Giving bad or unwanted shifts to an employee because he/she rejected sexual requests or a romantic date
What to Do if You Experience Harassment at Work
As a victim of sexual harassment, you don’t have to remain silent, especially when it happens in the workplace. No victim should be told that they need to stay quiet and ignore the harassment. Here are some actions you should take if you are being sexually harassed:
- Speak up. First of all, the harasser might not know how offended their conduct is making you feel. Taking this first step to stopping the harassment is a necessary one to resolve this issue. You should also notify your employer in writing (we’ve dedicated an entire blog post regarding how to complain or report stuff at work). At least, after this stage, the harasser can’t claim ignorance of his/her offensive behavior.
- Review and follow your employer’s procedures on sexual harassment in the workplace. Some companies may have a specific procedure that should be followed, such as reporting the harassment to a designated person in the company. If there is no specific person, you should go to your immediate supervisor. If the harasser is your supervisor, you are allowed to go around him/her on the hierarchy and notify his/her immediate supervisor.
- Contact an employment lawyer to learn about what your next steps should be.
- Keep detailed records of episodes of sexual harassment in the workplace, of your complaints, and any other related incidents. Always include the times, dates, names of people involved, and what was said between the parties. Its easy to send an email to yourself (from a personal account) and that keeps the date, time, and details in a secure location that your boss can’t delete.
- Have your sexual harassment lawyer file an administrative charge. If after reporting the sexual harassment to your employer nothing is resolved, this may be escalated to the appropriate governmental agency. You’ll need to get a right to sue letter from the DFEH.
- Bring the case to court, if you have a received a “right to sue” letter. This civil lawsuit can cover any injuries you’ve suffered due to the harassment. There is no expectation of proof by physical injuries, as most injuries in sexual harassment cases are emotional or psychological injuries.
Not every complaint that is filed for an administrative charge is given a “right to sue” letter. When you make the complaint to a governmental agency, they investigate the claims and make the decision based on the findings. But get more information from you lawyer before filing a claim.
Hire a Sexual Harassment Lawyer if You’re a Victim
Talking to a good employment lawyer as soon as possible will help ensure that you have the evidence necessary to proceed with a lawsuit. A successful litigation may result in:
- Receiving back-pay (economic damages) if you were fired or if you missed out on a promotion or raise
- Recovering the value of the other benefits provided by the employer
- Being awarded damages for emotional distress (these can be substantial in severe cases)
- Requiring that your employer start policies and/or training to stop sexual harassment from happening again
- Getting reinstated
- Award for attorney’s fees and costs
How to Pick a Good Sexual Harassment Lawyer
Picking a lawyer is hard. Most people don’t know how to evaluate how good or bad an attorney is. Our recommendation is that you choose the person you trust the most. Here are some factors to think about when searching for a lawyer:
- Does the attorney have a track record of success?
- Is the lawyer a one man show, or does he have a large organization behind him that will terrify the defense.
- Did the law firm call you back right away, or did you have to wait a week and a half?
- Does the sexual harassment lawyer carefully listen to what you say, or only listen halfway?
- Is the lawyer more concerned with showing off, or more concerned with help you?
We highly recommend that you think long and hard before hiring any lawyer (including ourselves!). After all, these cases sometimes take years to complete and you want to make sure you like and trust your legal team.
Your Responsibilities as a Victim
As the victim of sexual harassment in the workplace, you have the responsibility of making sure that your employer knows that you feel harassed. This means that you need to take the necessary steps to talk to human resources and let them know that these unwanted sexual advances, conduct, or comments at work need to stop.
But victims also have the burden of standing up for what is right when the company terminates them. If sexual harassment victims do not fight back, the harassers will continue to take advantage of other females in the work force.
We suggest that you keep detailed records of any communication regarding the sexual harassment, including dates that the offensive conduct happened as well as dates of confrontations. You should not encourage the harassment in any way. Something as simple as “lol” to his unwanted text messages can make it very difficult to win your trial, even if you do it just to avoid any awkwardness at work.
Talk to a Bohm Law Group employee to get a consultation and see if you have a strong case.