Do You Have A Sexual Harassment Case?
Here’s A General Breakdown What To Look For If You Might Have A Sexual Harassment Case.
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What Is Sexual Harassment?
In short, Sexual Harassment is usually unwanted words or conduct of a sexual nature. Some examples include:
- Unwanted sexual advances, such as requests to go on a romantic date or to engage in sexual acts
- Unwanted sexual jokes or metaphors
- Telling sexually explicit stories
- Asking questions about someone’s sex life or dating history
- Sharing or sending sexual or pornographic material
- Texting about sexual or personal topics
- Sliding up in your DMs late at night
California law recognizes two (2) types of sexual harassment, both of which are illegal under the Fair Employment and Housing Act:
- “Hostile Work Environment” Sexual Harassment
- “Quid Pro Quo” Sexual Harassment
Both of these are discussed in details below.
Hostile Work Environment Sexual Harassment
Hostile Work Environment Is The Most Common Type Of Sexual Of Harassment That Can Occur In The Workplace.
It simply refers to inappropriate behavior that is related to a person’s sex that is either severe enough and/or persistent enough to create an abusive (“hostile”) work environment.
Notably, California law establishes a “sliding scale” standard when examining hostile work environment sexual harassment. This means that sexual harassment exists even if there are only a few incidents, as long as that conduct is severe enough to create a hostile environment – i.e. groping, touching, kissing, etc. Alternatively, sexual harassment can exist even if the conduct is not severe (like small comments, looks, vague sexual innuendos, etc.) as long that conduct is pervasive and continuous over time – think “death by a thousand cuts.”
In a court of law, the victim must simply show that the conduct is severe or pervasive, or a combination of the two.
Recently, California law has clarified that, even one single act may be enough to qualify as sexual harassment if that conduct is severe enough to create a hostile work environment. Previously, California law made an exception for one-time occurrences, called the “stray remarks doctrine.” This was widely criticized by employee advocates and referred to as the “one free grope law.” Thankfully, as of 2019, this is no longer allowed.
Quid-Pro-Quo Sexual Harassment
Unlike hostile work environment, quid-pro-quo sexual harassment occurs when someone places pressure on a subordinate employee to perform a sexual act in exchange for a workplace benefit (i.e. a promotion, preferential treatment, raise in salary, etc.).
Due to the fact that there is an exchange demanded, some refer to quid pro quo harassment as “pay to play” harassment. One example would be a boss demanding (or implying) that his female employee must accompany him on a romantic date in order to be considered for a promotion.
This is just as illegal as hostile work environment sexual harassment and does occur frequently.
How Do I Stop Sexual Harassment?
1. Report It In Writing & Follow Procedure (If Any)
The best way stop workplace sexual harassment is to report it in writing to either your Human Resources department or a supervisor or manager that has the power to investigate and correct the issue.
Most all employers have some procedure in place for preventing and stopping sexual harassment, as California law requires all employers to do so. It’s best to follow that procedure, but make sure that you put your employer on notice in writing, as this may become critical evidence in the future.
Important: Make sure that you outline in your complaint how the harassment is sexual in nature. Remember, not all harassment is illegal – in order to be protected by law, you must report harassment related to on or more protected classes, including sex.
2. Supply Facts, Documents And Witnesses To HR (In Writing) And Cooperate With The Investigation
Once you have put your employer on notice, allow them to investigate and correct the issue. It would be advisable to supply HR or your manager with as much facts, documents and witnesses as you can (again, do it in writing). This may help in the future to show whether your employer’s investigation was “in good faith” or if they simply “went through the motions” in order to clear themselves of any wrongdoing.
3. Follow-Up As Needed (In Writing) To Report Further Harassment Or Retaliation
Unfortunately, your employer might not be able (or want) to take corrective action against the harasser. This can be for a multitude of reasons.
If you are lucky, the harassment will stop nonetheless. If you are unlucky, it may not stop and/or you may begin to experience workplace retaliation from the harasser or others.
You must report this retaliation in writing immediately, even if you don’t think HR or management will do anything to help. This is necessary to document the retaliation, which is also illegal and separately actionable. In California, it is illegal to retaliate against an employee for reporting unlawful harassment, even if it turns-out that the harassment wasn’t actually illegal under the law. As long as you had a genuine, good-faith belief that the harassment was illegal, your complaint is protected and your employer cannot retaliate against you for reporting it.
4. Consult a Sexual Harassment Attorney
It’s never a bad idea to also consult with a sexual harassment attorney to discuss your options going forward. If you’re still employed, it’s difficult to assert legal claims since most of your damages come from lost wages as a result of termination. Still, it’s advisable to have an attorney apprised of your situation so he or she can possibly add some guidance, review your complaints to management, and be prepared to move forward with your case if and when you are terminated as a result.