What Constitutes Sexual Harassment In The Workplace In California?
An executive at Wells Fargo. An Orange County golf club attendant. Fourteen male crew members on ABC’s TV production team. Professionally, they don’t seem to have much in common — except that in the past year, all have spoken out about the pervasive sexual harassment they experienced in their jobs.
These three cases are an unfortunate testament to the widespread prevalence of sex-based harassment in California today — regardless of industry or employment level.
In this blog post, we’ll walk through what kinds of workplace misconduct are considered sexual harassment, the legal channels available to respond to it, and the steps to take if you’ve experienced sexual harassment at work in California.
If you have questions, please contact our California employment attorneys online or call (866) 442-6755.
What Does Sexual Harassment Look Like?
Sexual harassment can take a variety of forms. Broadly, it’s defined as offensive or discriminatory treatment toward an individual based on their sex.
This discriminatory treatment includes unwanted advances or sexual conduct. But workplace harassment doesn’t necessarily have to be motivated by sexual desire, or even to be sexual in nature.
Harassing or offensive treatment that targets an individual for their gender, sexual identity, pregnancy, childbirth (or related medical conditions) is also considered sexual harassment under California law.
Both federal and California state law classify sexual harassment into two categories: “quid pro quo” and “hostile work environment” harassment.
Quid pro quo is a Latin phrase that means “this for that.” Generally, it describes a situation where an exchange is taking place.
As a type of harassment, it’s applied to incidents when someone is compelled to take part in unwanted sexual acts in exchange for some kind of benefit in the workplace: e.g. hiring, promotion, or just continued employment.
It doesn’t matter whether or not you ultimately receive this benefit. Any time unwanted sexual conduct is made a condition for achieving professional benefits — or a threat for withholding them — that is legitimate grounds for a claim of sexual harassment.
Alternatively, an employee might experience sexual harassment when they’re subject to offensive behavior that’s so pervasive or severe that it interferes with their ability to do their job. This is called “hostile work environment” sexual harassment.
In these situations, misconduct doesn’t have to be linked to an offer of economic or professional benefits.
Instead, it’s defined as any behavior(s) that creates an intimidating, hostile, or offensive work environment and significantly impacts an individual’s ability to do their job. This could look like:
- Derogatory comments, slurs, epithets, or jokes;
- Unwanted touching, such as back rubs, pats on the butt, pinching, or “accidental” brushes against your body;
- Discussion of sexual acts;
- Leering or rude gestures;
- Graphic comments, sexually degrading words, sexually suggestive or obscene messages or invitations; or
- Someone impeding or blocking your movements.
What Protections Do California Employees Have From Sexual Harassment At Work?
Both U.S. federal and California state law considers sexual harassment to be a type of employment discrimination. Offensive, prejudicial, or hostile treatment directed at a worker because of their sex is a violation of an individual’s right to a safe work environment.
For that reason, federal law governing sexual harassment is outlined in Title VII of the Civil Rights Act of 1964. At the state level, California’s Fair Employment and Housing Act (FEHA) handles workplace sexual harassment charges.
Under both federal and state anti-harassment and -discrimination law, employers have an affirmative duty to maintain a work environment that is free from unlawful harassment and discrimination (on the basis of sex, or otherwise).
This means that it’s your company’s responsibility to do all they reasonably can to prevent sexual harassment in the working environment.
California’s Fair Employment and Housing Act specifically requires that all employers provide their workers with basic information about sexual harassment, as well as information about discrimination and retaliation prevention.
Importantly, California’s state-level laws provide a broader scope of protections than federal sexual harassment law until Title VII. For one, California’s FEHA protects all individuals who could experience inappropriate treatment in the workplace.
This includes not only employees but job applicants, unpaid interns, volunteers, and contractors or third-party vendors. Even more critically, California state law applies to all private, state, and local employers — regardless of the size of the company, or an individual’s immigration status. By contrast, the anti-harassment protections in Title VII of the Civil Rights Act apply only to employers with fifteen or more workers.
Because of this, California’s Fair Employment and Housing Act is generally seen as the stronger legal framework for pursing claims of sexual harassment in California — and the one more favorable for employees seeking recovery.
What Should I Do If I’ve Been Sexually Harassed At Work In California?
The first thing to do if you’ve experienced inappropriate behavior in your workplace is to report it to your employer. Under California law, your employer is required to document, evaluate, and respond to all complaints of harassment, while preserving as much of your confidentiality as possible.
This means thoroughly investigating your complaint and taking appropriate remedial measures in response, if the misconduct is verified.
Since the DFEH and EEOC automatically cross-file complaints, you only need to submit it to one of them. The agency will then investigate the harassment complaint and determine whether or not to bring civil charges on your behalf against the offending party:
- The perpetrator, who is personally liable for damages — whether or not your employer knew about the harassment.
- Your employer, who is considered “strictly liable” if the harassment was at the hands of your supervisor or other internal source — whether or not they knew about it or took corrective action.
Even if the DFEH or EEOC chooses not to file charges, you can still sue in civil court for the harassment you’ve suffered.
In fact, California law requires anyone looking to bring a lawsuit for cases of sexual harassment to file their complaint with the California DFEH first. The DFEH will then give you what’s called a right-to-sue notice, after which you can take your case to court.
Be aware: Harassment complaints filed with the DFEH must be submitted within one year of the last offending incident. Similarly, the EEOC requires that sexual harassment claims are filed no later than 300 days after the event.
It’s important to make sure that you thoroughly document your experience with misconduct and not to wait too long to start the process of filing your complaint, internally or externally. Below, are some examples of what you should do if you experience sexual harassment in the workplace.
- I was harassed at my job by someone who doesn’t work for my company? California law says employers have a duty to protect workers from all workplace sexual harassment, even in situations where a non-employee is the one engaging in the offending behavior. For instance, if you’re receiving inappropriate emails from someone engaged by your company as a consultant from an outside firm, your employer is still legally responsible for taking action.
- My supervisor/HR ignored my internal harassment complaint? If your employer knows about an incident of alleged sexual harassment, and they fail to immediately take actions to respond, then they’re violating the law, not to mention your rights. In this case, they may be held liable for additional financial damages in compensation.
- I was fired after complaining about sexual harassment? Terminating, demoting, threatening, or otherwise punishing individuals who report sexual harassment (internally or externally) is a form of unlawful retaliation. Even if you haven’t experienced harassment personally, if you are participating in a harassment investigation, you’re protected under federal and California law from adverse actions your employer might take to evade or impede anti-harassment proceedings.
Contact a California Employment Lawyer for Assistance
Seeking restitution for the harassment you’ve suffered can be intimidating. It’s helpful to consult with an employment attorney who can evaluate your situation, answer your questions, and guide you on the path to move forward to getting the accountability you deserve.
Ottinger Employment Lawyers has been helping survivors of sexual harassment in California win recovery for over twenty years.
If you’re a California employee who’s been harassed at work, reach out to our team today to speak with an experienced attorney about how we can help you.