Sexual Harassment In The Workplace- How Should Employers Prevent It?

In the past several years, the #MeToo and Time’s Up movements have shown the world that sexual harassment and assault still happen with alarming frequency in workplaces across the country. In California, the Legislature has attempted to address this issue by requiring most employers to provide training on sexual harassment to all employees.

Although mandatory training may help educate supervisors and other employees about sexual harassment, it has not put an end to this systemic problem. Employees across California still experience sexual harassment on a regular basis from their bosses, colleagues, clients, and others in the workplace. Below are a few things both you and your employer can do to help eliminate that problem.

What Is Sexual Harassment?

In California, there are two types of sexual harassment that may occur in the workplace. Quid pro quo harassment involves a supervisor demanding sexual favors in exchange for a workplace benefit. In contrast, hostile work environment harassment occurs when an employee receives unwelcome advances, conduct, or comments that are based on the employee’s sex, and this harassment is severe and/or pervasive enough to alter the conditions of employment.

In some cases, an employee may experience both quid pro quo and hostile work environment sexual harassment. Both kinds of sexual harassment may be committed by supervisors or bosses, company owners, coworkers, customers, clients, independent contractors, or vendors. However, an employer’s responsibility for the harassment varies based on who committed it.

Consider The Case Of Autumn:

She has worked as a pharmacy tech at a large national drug store chain for 3 years. Her manager, Eli, has asked her out on a date several times. After she declined, he changed her schedule so that she worked mostly on evenings and weekends — while other techs got more favorable daylight shifts. He also started making lewd comments about her body and her dating life when he worked with her, which happened 3 or 4 days a week. This went on for several months until Autumn finally quit her job because of the harassment and poor working conditions.

Autumn may have a claim for both quid pro quo and hostile work environment sexual harassment. First, her supervisor made a sexual advance on her — and punished her when she said no. That is quid pro quo harassment. Second, he made unwelcome remarks about her, which were made on the basis of her sex. Those comments were more than just occasional or isolated, and became so pervasive that Autumn felt that she had no choice but to quit her job (i.e. constructive discharge).

Because Eli is her supervisor, the company is strictly liable for his sexual harassment. This means that Autumn’s employer is responsible for his conduct even if it was not negligent in any way. If Eli had been her coworker, then Autumn would have to prove that the company knew or should have known about the harassment and failed to take immediate action to correct it.

Are Employers Required To Provide Anti-Harassment Training?

Under California law, employers must take certain steps to prevent or reduce sexual harassment. Under the Fair Employment and Housing Act (FEHA), all California employers with five or more employees must provide each supervisor with at least 2 hours of classroom or interactive online training on sexual harassment. This training must take place within 6 months of the employee being hired or promoted to a supervisory position, and then again every 2 years after that. This training must be completed by January 1, 2021.

In addition to training for supervisors, employers must provide at least one hour of training and education to all nonsupervisory employees. As with supervisors, the training must be provided within 6 months of hire, and must be repeated every 2 years.

Under This Law, The Training And Education Can Be Offered Individually, Or As Part Of A Group Presentation. It Must Include:

• Information and practical guidance on state and federal laws that prohibit sexual harassment;

• Preventing and correcting sexual harassment;

• Remedies available to victims of sexual harassment;

• Practical examples to help supervisors understand how to prevent harassment, discrimination and retaliation;

• Prevention of abusive conduct; and

• Should include information about harassment based on gender identity, gender identity, and sexual orientation.

These programs should be presented by trainers or educators who have both knowledge and expertise in these subjects. In addition to these trainings, employers must hang the Department of Fair Employment and Housing (DFEH)’s poster on employment discrimination in an accessible location, and distribute  DFEH’s brochures on sexual harassment to all employees.

Importantly, although California law requires that employers take these steps, a failure to do so does not mean that the employer will automatically be held responsible for any sexual harassment that takes place in the workplace. It may be a factor that is considered as part of a sexual harassment claim.

What Can You Do If You Are Sexually Harassed At Work?

If you have experienced sexual harassment at work, then you may be able to file a complaint against your employer. Even if you have signed a contract in which you waive your right to sue your company, you can still file a claim. An agreement that gives up your right to sue for sexual harassment is not enforceable under a 2018 California law.

The process generally starts with a consultation with an experienced employment lawyer. From there, your attorney will either file a complaint with the DFEH or the federal Equal Employment Opportunity Commission (EEOC). There are specific reasons why it may be more favorable to file with one agency or the other; your lawyer can help you make a decision about where it is best to file your complaint.

In most cases, the DFEH or EEOC will issue what is known as a “right to sue” letter. This gives you the ability to file a lawsuit against your employer for sexual harassment. The claim may be filed in federal or state court, however, most employment attorneys recommend that your action be filed in State court, as that venue is generally more favorable to your claims if you live in certain states like California.

Victims of sexual harassment may be able to recover compensation for back and front pay, pain and suffering, mental anguish, and loss of reputation. They may also be awarded attorneys’ fees, court costs, expert witness fees, and in some cases, punitive damages. Employees may also be reinstated at their prior position, if that is a desired outcome.

Despite California laws that require most employers to train all employees on sexual harassment, it is still occurs far too often in workplaces across the state. Fortunately, employees who experience sexual harassment at work can seek justice through a legal claim.

If you have experienced sexual harassment at work, call us today at 949-771-8173 or email us at rob@odelllaw.com.