California workers are protected against sexual harassment under California law through the Fair Employment and Housing Act (FEHA). The FEHA defines sexual harassment as “unwelcome verbal, visual or physical conduct of a sexual nature. The law changed substantially on January 1, 2019, and no longer requires the victim of sexual harassment to prove the that harassing conduct was severe or pervasive. The victim may now establish his or her case by proving that a reasonable person subjected to the harassing conduct would find that the harassment so altered working conditions as to make it more difficult to do the job.
There are two theories of recovery in a sexual harassment case:
1. Hostile Work Environment Harassment -- Hostile work environment sexual harassment occurs when unwelcome comments or conduct based on sex unreasonably interfere with your work performance or create an intimidating, hostile, or offensive work environment. In this type of harassment, you may experience sexual harassment even if the offensive conduct is not directed at you.
2. Quid Pro Quo Harassment -- Quid Pro Quo means "this for that." It is when someone conditions a job, promotion, or other work benefit on your submission to sexual advances or other conduct based on sex.
One myth about sexual harassment is that it only occurs when a man in a position of power harasses a woman beneath him in the corporate hierarchy. While that is one example, there are actually many others. Men can sexually harass other men. Women can harass both women and men. And, sexual harassment does not have to stem from an employment relationship where the harasser is in a position of authority over the person being harassed. Even someone that is not employed by your company can sexually harass you and subject your employer to liability under certain conditions.
The conduct must also be sexual in nature. Sexual conduct that may constitute sexual harassment in the workplace includes:
1. Offering employment benefits in exchange for sexual favors;
2. Unwanted sexual advances;
3. Derogatory comments, epithets, slurs or jokes;
4. Physical touching or assault, as well as impeding or blocking movements;
5. Leering; gestures; or displaying sexually suggestive objects, pictures, cartoons, or posters;
6. Graphic comments, sexually degrading words, or suggestive or obscene messages or invitations; and
7. Harassment related to gender.
The harassing behavior must also affect your working conditions or create a hostile work environment. This can include losing your job or being passed over for promotion for not consenting to sexual misconduct. It can also occur if the conduct makes you so uncomfortable that you avoid certain job duties or opportunities to avoid the harasser.
In general, you must file a charge of harassment with the Department of Fair Employment and Housing (DFEH) within a year of the last incident of harassment in order to bring a claim for sexual harassment under California law. The time limit may be even shorter based on federal law and whether your employer is a public entity. Consult with an experienced attorney regarding possible exceptions.
Before that happens, you should report sexual harassment internally at your company at your earliest opportunity. In most cases, the expectation is that you notify your employer that you believe you are being harassed and that you provide your employer an opportunity to investigate your claims and take action to prevent any further harassment.
If you have any confusion about what constitutes sexual harassment, or what you need to do in order to combat sexual harassment, you should contact Matt [BY COMPLETING THE INTAKE FORM – link to it here] as soon as you can, or as soon as you believe that your employer is not doing anything or will not do anything to protect you from harassment at work.
You are protected under California law if you are retaliated against for complaining about sexual harassment – either formally or informally. Not every employer action, however, constitutes retaliation.
For example, if you have low performance and receive a negative performance evaluation shortly after complaining about sexual harassment, you may not be experiencing retaliation. In most cases like this, the employer would have a legitimate business reason for counseling you based on your low performance.
An employer cannot, however, take an unjustifiable “adverse employment action against you because you complained about sexual harassment. In other words, your employer would be breaking the law if it fires you, demotes you, passes you over for promotion, or even harasses you, because of your complaint. The law also protects employees who participate in sexual harassment investigations from retaliation.
It takes strength, courage and conviction to speak out against sexual harassment in the workplace. The law, however, protects you if you do, and you cannot be retaliated against for pursuing your lawful right to stop sexual harassment that is occurring in your workplace.
Remember, sexual harassment is illegal, and you do not need to endure it in order to keep your job. Whether you are a woman being harassed by a man or woman, or a man being harassed by a man or woman, you have a right to a workplace that is free of harassment.
Northern California radio station KALW featured Matt and one of his colleagues on a broadcast of "Your Legal Rights," where host Jeffrey Hayden interviewed them to discuss sexual harassment within the legal framework that existed prior to January 1, 2019. You can listen to the recorded radio broadcast by clicking on this link: Listen to the KALW radio interview here.
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