Sexual Harassment

I’ve Been Sexually Harassed:  Should I Do Something?

December 12, 2017

By:  Marissa C. Marxen

            In the wave of recent allegations against Harvey Weinstein, Charley Rose, and most recently, Matt Lauer, women are finally coming forward after being sexually harassed.  However, coming forward can intimidating, nerve-racking, and confusing.  

            If you have been sexually harassed, this article should help provide some general information about sexual harassment.  Please make sure to see the FAQ section at the end of the article as well.  Given the short statute of limitations for sexual harassment, if you have experienced sexual harassment, please contact our office immediately to set up a free consultation to discuss your options.  Our goal is to discuss what options are best for you—whether that is discussing options for staying at your current job or figuring out how to leave your job and escape a hostile work environment.

I.                SEXUAL HARASSMENT

            Employers that employ five or more persons are subject to California’s Fair Employment and Housing Act (“FEHA”), which requires them to take “all reasonable steps to prevent discrimination and harassment from occurring.”  (Gov. Code, § 12926, subd. (d).)  It also defines as an “unlawful employment practice” any “employer’s refusal to hire, employ, or select for a training program leading to employment, any person because of that person’s ‘race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation.’”  (Gov. Code, § 12940, subd. (a), italics added.)  

            Typically, an employee unfortunate enough to experience sexual harassment has three potential causes of action/claims for relief: (1) discrimination based upon sex; (2) retaliation; and/or (3) wrongful termination.

               A.            Sexual Harassment is Discrimination Based Upon Sex.

            Sexual harassment is a form of unlawful discrimination based upon sex under Title VII of the Civil Rights Act (“Title VII”) as well as California’s Fair Employment and Housing Act (“FEHA”), both of which make it unlawful to discriminate against employees on the basis of sex.  (Meritor Savings Bank v. Vinson (1986) 477 U.S. 57, 64 [Title VII]; Hughes v. Pair (2009) 46 Cal.4th 1035, 1042 [describing how California’s FEHA, like federal law, prohibits sexual harassment in the workplace]; Gov. Code, § 12940, subd. (a).)  The FEHA defines “sex” to include a person’s gender.  (Gov. Code, § 12926, subd. (r).)  The California Constitution also prohibits sex discrimination in employment, providing an independent basis for sexual harassment claims in violation of public policy.  (Rojo v. Kliger (1990) 52 Cal.3d 65, 90.)   

            In most disparate treatment employment discrimination cases, the plaintiff employee lacks direct evidence of an employer’s discriminatory intent. (Rodriguez v. IBM (N.D. Cal. 1997) 960 F. Supp. 227, 229-30 [applying California law].)  Thus, courts find disparate treatment where evidence of intentional discrimination against one or more employees on prohibited grounds may be inferred from facts creating a reasonable likelihood of bias that an employer cannot satisfactorily explain.  (Guz v. Bechtel Nat’l, Inc. (2000) 24 Cal. 4th 317, 354; Teamsters v. United States (1977) 431 U.S. 324, 335-36, fn. 15.)  When examining claims of employment discrimination under the FEHA, California courts adopt the three-stage burden-shifting test for discrimination based on a disparate treatment theory formulated by the United States Supreme Court for evaluating claims under Title VII in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792. (Sada v. Robert F. Kennedy Med. Ctr. (1997) 56 Cal.App.4th 138; University of So. Cal. v. Super. Ct. (1990) 222 Cal.App.3d 1028, 1035 [FEHA is evaluated under law interpreting Title VII cases]; Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 307; Guz v. Bechtel Nat’l, Inc. (2000) 24 Cal. 4th 317, 354 [citing Texas Dept. of Community Affairs v. Burdine (1981) 450 U.S. 248].)  Thus, the Supreme Court three-pronged burden shifting analysis requires (1) the plaintiff employee to establish a prima facie case of discrimination by showing disparate treatment because the employee fell into a protected class; (2) if the plaintiff carries the initial burden, the employer must offer a legitimate, non-discriminatory reason for its actions, and (3) if the defendant employer carries that burden, the presumption of discrimination disappears, and the plaintiff-employee must prove that the reasons was a pretext to make an illegal motive.  (Guz, supra, 24 Cal.4th at p. 354; Sada, supra, 56 Cal.App.4th at p. 1035.)

            Thus, under this test, in order to establish a cause of action for disparate treatment under the FEHA, a plaintiff must show that he or she: (1) falls into a sex and/or or gender disfavored by his or her supervisor; (2) was qualified for the position or performed the job satisfactorily; (3) suffered an adverse employment action; and (4) was either demoted, constructively terminated, or subjected to other adverse employment actions that other workers (of different age, sex, or race) with equal or inferior qualifications did not suffer. (California Civil Jury Instruction No. 2500.)

              Additionally, pursuant to the above requirements, for a successful claim of discrimination based upon sex, the employer must not have a legitimate, non-discriminatory reasons for any potentially retaliatory/discriminatory actions.  For example, if an employee alleges an employer fired him or her for a discriminatory reason, the employer must not have a legitimate, non-discriminatory reason for terminating the employee—such as the employee being late for work every day despite repeated warnings about that behavior.  Typically, where true discrimination arises, an employee will have an exemplary record up until the discriminatory actions began occurring and/or the employee will be terminated for an offense that many other employees have committed as well, but the employer never reprimanded those employees.  Further, the reason provided for the termination will usually qualify as mere pretext.  For instance, where the employer lacks a legitimate, nondiscriminatory reason for firing an employee, the only reasonable conclusion is that the employer fired the employee in retaliation for reporting sexual harassment and not acquiescing to it. 

                            1.              Discrimination Because of an Employee’s Sex

              Sexual harassment is defined as consisting of (1) verbal harassment, such as inappropriate discussions (i.e., sexual innuendo, questioning a person’s sexuality, etc.); (2) physical harassment, such as unwanted touching; or (3) visual harassment.  (Cal. Code Regs., tit, 2, § 7287.6(b)(1).)  Traditionally, under both federal and California law, sexual harassment takes one of two forms: (1) quid pro quo harassment, arising where employment benefits (such as promotions) or the absence of job detriments (such as being terminated) are conditioned upon the submission to unwelcome sexual advances and (2) hostile work environment harassment, which arises when a plaintiff employee’s “work environment is made hostile or abusive by sexual conduct.”  (Murphy, Stephen M.; 2d ed. (May 2014) Wrongful Employment Termination Practice: Discrimination, Harassment, and Retaliation § 4.41; see also Herberg v. California Institute of the Arts (2002) 101 Cal.App.4th 142, 149.)  

              Regrettably, most victims of sexual harassment experience both quid pro quo harassment as well as hostile work environment harassment.

                                          a.              Quid Pro Quo Harassment (E.g., “Kiss me if you want to keep your job.”)

              “Quid pro quo” is Latin for “this for that.”  To establish either a Title VII quid pro quo sexual harassment violation or FEHA claim, the plaintiff victim must prove that a “supervisor explicitly or implicitly conditioned a job, a job benefit, or the absence of a job detriment on the plaintiff’s acceptance of unwelcome sexual conduct.”  (Murphy, supra, at § 4.42; see also Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 607.)  “A cause of action for quid pro quo harassment involves the behavior most commonly regarded as sexual harassment, including, e.g., sexual propositions, unwarranted graphic discussion of sexual acts, and commentary on the employee’s body and the sexual uses to which it could be put.”  (Mogilefsky v. Super. Ct. (1993) 20 Cal.App.4th 1409, 1414.)  Quid pro quo harassment may be based upon a single incident.  (Murphy, supra, at § 4.42.)  In quid pro quo harassment cases, “[i]t is enough that the individual making the unwelcome sexual advance was plaintiff’s supervisor, and that a link to employment benefits could [reasonably] be inferred under the circumstances.”  (Holly D. v. Cal. Inst. of Tech. (9th Cir. 2003) 339 F.3d 1158, 1173 [applying Title VII and FEHA].)  Further, “[g]iven the imbalance of power, persistent unwanted sexual attention from a supervisor has the potential to result in significant harm.”  (Id. at 1174.)

              Because quid pro quo harassment exemplifies a supervisor’s exploitation of his or her superior power over a subordinate, the law frowns upon this behavior and allows courts to hold an employer strictly liable for the sexual harassment of a supervisor.  As evidenced by the Matt Lauer allegations, women came forward who alleged that even though Matt Lauer never verbally threatened that if they did not acquiesce to their advances, their job could be jeopardized.  These women stated that the mere fact that he was (1) a supervisor and (2) an extremely influential individual at NBC who could have them terminated on a whim at his desire made them feel as if they had no choice but to allow his advances if they wanted to keep their job.  The moral of the story is that in such situations, a man or woman may feel powerless to reject a supervisor’s advances even if the supervisor never verbally threatens, “If you reject my advances, I’ll fire you.”  

                                          b.              Hostile Work Environment Harassment

              To establish either a federal Title VII sexual harassment violation or a FEHA claim for hostile environment sexual harassment, the victim employee must prove: (1) she was subjected to unwelcome sexual advances, conduct, or comments by a supervisor with immediate or successively higher authority over the victim; (2) the harassment was unwelcome; and (3) the harassment was so severe and pervasive as to alter the conditions of the victim’s employment and create an abusive working environment.  (Lyle v. Warner Bros. Television Prods. (2006) 38 Cal.4th 264, 279 [FEHA]; Fuller v. City of Oakland (9th Cir. 1995) 47 F.3d 1522, 1527 [Title VII].)  A hostile work environment arises when “the sexually harassing conduct sufficiently offends, humiliates, distresses or intrudes upon its victim, so as to disrupt her emotional tranquility in the workplace, affect her ability to perform her job as usual, or otherwise interferes with and undermines her personal sense of well-being.” (Fisher, supra, 214 Cal.App.3d at p. 608.)

              California courts have also adopted the Title VII standard for evaluating hostile work environment sexual harassment claims brought under the FEHA.  (Lyle v. Warner Bros. Television Prods. (2006) 38 Cal.4th 264, 279.)  Thus, under this test, a plaintiff pursuing a hostile work environment claim must establish that he or she “was subject to sexual advances, conduct, or comments that were (1) unwelcome, (2) because of sex, and (3) sufficiently severe or pervasive to alter the conditions of [his or] her employment and create an abusive work environment.”  (Ibid; see also Sheffield v. L.A. Cnty. (2003) 109 Cal. App. 4th 153, 161 [“However, the harassment need not be severe and pervasive in order to impose liability; either severe or pervasive will suffice”].)  To establish severe or pervasive behavior, the plaintiff employee must satisfy an objective standard by proving that a reasonable person would find the environment abusive and a subjective standard by showing that the plaintiff did, in fact, perceive the environment to be abusive. (See Harris v. Forklift Sys., Inc. (1993) 510 U.S. 17, 21 [FEHA]; Lyle, supra, 38 Cal.4th at p. 284 [FEHA].)  “Whether the sexual conduct complained of is sufficiently severe or pervasive enough to create a hostile or offensive work environment must be determined by the totality of the circumstances.”  (Fisher, supra, 214 Cal.App.3d at p. 609.)  “The factors that can be considered in evaluating the totality of the circumstances are: (1) the nature of the unwelcome sexual acts or works (generally, physical touching is more offensive than unwelcome verbal abuse); (2) the frequency of the offensive encounters; (3) the total number of days over which all of the offensive conduct occurs; and (4) the context in which the sexually harassing conduct occurred.”  (Fisher, supra, 214 Cal.App.3d at p. 610; Sheffield, supra, 109 Cal. App. 4th at p. 162.)  Notably, in FEHA cases where a plaintiff alleges both discrimination and sexual harassment, the plaintiff may use evidence in support of the discrimination claim to prove the harassment claim. (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 709.)

              As discussed below, “[t]he required level of severity or seriousness ‘varies inversely with the pervasiveness or frequency of the conduct.’”  (Mokler v. Cty. of Orange (2007) 157 Cal.App.4th 121, 142.)  In other words, for hostile work environment, the conduct must be severe OR pervasive, so that even a single instance of harassment may create a hostile environment so long as it is severe enough, whereas less severe, more subtle harassment may also qualify so long as it is pervasive enough.

                                                        i.              If the Conduct is Isolated, It May Need to be Severe.

              “Courts that have construed federal and California employment discrimination laws have held that an employee seeking to prove sexual harassment based on no more than a few isolated incidents of harassing conduct must show that the conduct was ‘severe in the extreme.’”  (Hughes, supra, 46 Cal.4th at p. 1043; see also Candelore v. Clark Cty. Sanitation Dist. (9th Cir. 1992) 975 F.2d 588, 590 [isolated incidents of sexual horseplay over number of years was insufficient to qualify as severe].)  Thus, “[a] single harassing incident involving ‘physical violence or the threat thereof’ may qualify as being severe in the extreme.” (Ibid. [citing Herberg v. Cal. Institute of the Arts (2002) 101 Cal.App.4th 142, 151; see also Quantock v. Shared Mktng. Services, Inc. (7th Cir. 2002) 312 F3d 899, 904 [reversing the lower court’s decision to grant the defendant’s motion for summary judgment where the president made repeated requests for sex during a single meeting lasting just a few minutes; due to his significant position of authority at the company and the close working quarters, his sexual propositions were found to be sufficiently “severe” to alter the terms of the victim’s employment].)

                                                        ii.             If Conduct is Pervasive, It Can be Less Severe.

             Courts find conduct pervasive where the conduct shows an ongoing and concerted pattern of harassment.  (Lyle, supra, 38 Cal.4th at 283; see also Fuentes v. AutoZone, Inc. (2011) 200 Cal. App. 4th 1221, 1237 [the plaintiff established that several incidents of inappropriate comments and behavior by plaintiff’s supervisors was both severe and pervasive enough to create a hostile work environment]; Draper v. Coeur Rochester, Inc. (9th Cir. 1998) 147 F3d 1104 [finding genuine issue of material fact existed as to the existence of a hostile work environment where the victim’s supervisor made repeated sexual remarks, calling her “gorgeous” and “beautiful” rather than her name, telling her about his sexual fantasies and desire to have sex with her, commenting on her “ass,” and asking over a loudspeaker whether she needed help changing her clothes].)

             In sum, sexual harassment will probably be found where (1) the sexual comments and actions of a supervisor would be perceived by any reasonable person as severe; (2) the supervisor influenced the decisions concerning the employee’s job; and (3) directed sexually offensive comments and advances directly towards the employee in the work place.  A finding of sexual harassment will be even stronger where the job duties do not require discussion of anything sexual in nature, and the employee’s conduct did not suggest that the employee would welcome the foul, sexual, and embarrassing conduct or discussion.  

                            2.             Employers May be Held Liable for Both Supervisors and Non-Supervisors.

             With sexual harassment, both supervisory employees as well as non-supervisory employees may be held liable.  Courts will hold employers strictly liable for the actions of supervisory employees.  (State Dept. of Health Services v. Super. Ct. (2003) 31 Cal.4th 1026, 1041 [“Under the FEHA, employers are strictly liable for harassment by a supervisor”].)  “[I]n order for the employer to avoid strict liability for the supervisor’s actions under the FEHA, the harassment must result from a completely private relationship unconnected with the employment.”  (Myers v. Trendwest Resorts, Inc. (2007) 148 Cal.App.4th 1403, 1421.)  Employers will also be held liable for the actions of non-supervisor employees where the employer “knows or should have known of conduct and fails to take immediate appropriate corrective action.”  (Gov. Code, § 12940, subd. (j)(1); see also Fisher, supra, 214 Cal.App.3d at p. 614 [“An employer is not vicariously liable for harassment by a nonsupervisory employee” unless it “knows or should have known” of such conduct and fails to take “immediate and appropriate corrective action”].) 

             “When the harasser is a nonsupervisory employee, employer liability turns on a showing of negligence (that is, the employer, or its agents or supervisors, knew or should have known of the harassment and failed to take appropriate corrective action).”  (See also Roby, supra, 47 Cal.4th at p. 707.)  Further, the non-supervisory employee may also be held personally liable for his or her actions: “An employee of an entity subject to this [subdivision (j)] subdivision is personally liable for any harassment prohibited by this section that is perpetrated by the employee, regardless of whether the employer . . . knows or should have known of the conduct and fails to take immediate and appropriate corrective action.”  (Gov. Code, § 12940, subd. (j)(3).)  Finally, it is unlawful “[f]or an employer . . . to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.”  (Gov. Code, § 12940, subd. (k).)

             B.                Retaliation

             It is unlawful for an employer to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under the law.  (Gov. Code, § 12940 subd. (h).)   To establish a prima facie case of retaliation under the FEHA, a plaintiff must show:

• • • • (1)   he or she engaged in a protected activity such as opposing sexual harassment, discrimination, and/or illegal payroll practices; 

      • (2)   he or she was subjected to adverse employment action in the form or the employer or its supervisors constructively discharging, demoting, cutting the employee’s pay, or taking other adverse employment acts against him or her; and

      • (3)   there is a causal link between the protected activity and employment action in that the employee’s protected activity was a substantial motivating reason for his or her constructive discharge, demotion, cut in pay, and/or other adverse action. 

(Ibid; see California Civil Jury Instruction No. 2505; see also Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042; Flait v. North America Watch Corp. (1992) 3 Cal.App.4th 467, 476; Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 614-15.)

            Once an employee establishes a prima facie case, the employer must offer a legitimate, non-retaliatory reason for the employer’s adverse employment action.  (Yanowitz, supra, 36 Cal.4th at p. 1042.)  If the employer successfully produces legitimate reasons for the adverse employment action, the presumption of retaliation disappears, and the burden shifts back to the employee to prove intentional retaliation.  (Ibid.)  

                            1.                  Adverse Employment Action

            “The appropriate standard for determining whether an employment action is sufficiently adverse is whether it ‘materially affects the terms, conditions, or privileges of employment.’  (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1051.)  “An action may materially affect the terms, conditions, or privileges of employment, even if it does not ‘impose an economic detriment or inflict a tangible psychological injury upon an employee.’”  (Id. at pp. 1052-1053 & fn. 11.)  “Minor or relatively trivial adverse actions that are reasonably likely to only anger or upset an employee cannot be viewed properly as materially affecting the terms, conditions, or privileges of employment and are not actionable.”  (Id. at pp. 1054-1055.)  Rather, “[t]o be actionable, retaliation must result in a substantial adverse change in the plaintiff's terms and conditions of employment.”  (Akers v. Cty. of San Diego (2002) 95 Cal.App.4th 1441, 1455.)  “A change that is merely contrary to the employee’s interests or not to the employee’s liking is insufficient.”  (Id.)    

                            2.                 Causal Link

            A plaintiff must may prove “retaliatory motive” by showing that (1) he or she “engaged in protected activities”; (2) the “employer was aware of the protected activities”; and (3) “the adverse action followed within a relatively short time thereafter.”  (Fisher, supra, 214 Cal.App.3d at p. 615.)  

                 C.                Wrongful Termination in Violation of Public Policy (Tameny Claims)

                 Although employment relationships are generally terminable at will, California courts recognize an exception to that rule: “An employer’s traditional broad authority to discharge an at will employee may be limited by statute . . . or by considerations of public policy.”  (Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 172.)  “While an at will employee may be terminated for no reason, or for an arbitrary or irrational reason, there can be no right to terminate for an unlawful reason or for a purpose that contravenes fundamental public policy.”  (Gantt v. Sentry Ins. (1992) 1 Cal.4th 1083, 1094, overruled on another ground in Green v. Ralee Eng’r Co. (1998) 19 Cal. 4th 66, 80; see also Hentzel v. Singer Co. (1982) 138 Cal.App.3d 290, 295.)  California’s policy against age, gender, and discrimination in employment is a statutory law and a fundamental public policy.  (Gov. Code, § 12940, subd. (a); Stevenson v. Super. Ct. (1997) 16 Cal.4th 880, 897.)

                 To establish a claim for wrongful termination in violation of public policy, an employee must prove the existence of: (1) an employer-employee relationship; (2) discharge or an adverse employment action taken by the employer; (3) a nexus between the adverse action and the protected activity; (4) proximate cause; and (4) damages resulting from the unlawful discharge. (Tameny, supra, 27 Cal.3d at pp. 179-180; see Holms v. General Dynamics Corp. (1993) 17 Cal.App.4th 1418, 1426.)

II.                 CONCLUSION

                 In the wake of the recent flood of sexual harassment allegations, many men have made absurd statements like, “Now, I have to be afraid to touch my co-workers or give someone a hug.”  This is not true!  

                 First, use common sense.  In general, if you are in a supervisory role, you should not become romantically involved with a subordinate.  The work dynamic makes the inferior employee feel pressured, and because of your superior position, that employee may be too afraid to tell you he or she is not interested.  Further, working together probably will not create for a great relationship anyways!  One of the most admirable instances of a successful workplace relationship I have seen arose where a superior became romantically interested in an inferior, and while they began dating while still employed by the same company, the superior later found a new job because he did not feel it was professional for them to continue to date while working for the same employer.  He also felt it would be better for the relationship.  This is a smart move.  Generally, unless you think you have the potential to be the next Jim and Pam from the office, an office romance is ill-advised, particularly if you do not see long-term potential for the relationship.

                 Second, feel the mood.  Usually, most people can tell whether someone is a hugger or not.  If you can’t tell, don’t huge them!  Plain and simple.  That’s it.  If you don’t know if someone wants to be touched, don’t touch them!

                 Finally, with the holidays around the corner, be particularly cautious about hugging your co-workers at the office holiday party, especially if you do not usually hug them.

III.                 FREQUENTLY ASKED QUESTIONS 

What qualifies as sexual harassment?

Sexual harassment has been defined to include “verbal, physical, or sexual behavior directed at an individual because of her, or his, gender” and “includes, but is not limited to, conduct which is verbal (such as epithets, derogatory comments or slurs), as well as physical and visual insults.”  (Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 476-477.)  Some examples of what qualifies as sexual harassment, includes but are not limited to:

• • unwanted sexual advances/touching, which may include:

        o blatantly grabbing a co-worker’s breasts, buttocks, or genitals—no, you cannot “grab women” by any part of their body and/or

        o accidentally “grazing” a co-worker’s breasts, buttocks, or genitals when you know it was not really an accident;

• • making sexually suggestive gestures, which may include:

        o holding objects up to a male’s genital areas and making masturbation gestures and/or

        o walking up behind a bent over employee making inappropriate gestures suggestive of intercourse

• • displaying sexually suggestive objects, pictures, cartoons, or posters;

  • giving a co-worker an inappropriate gift, such as a sexually suggestive card, statue, or “toy”;

  • using derogatory comments, epithets, or slurs to refer to a protected class, such as one sex or gender;

  • making sexually suggestive jokes;

  • graphic comments, sexually degrading words, or using suggestive or obscene messages and/or invitations, which may include a supervisor/co-worker discussing: 

        o what he or she would like to do to his or her co-worker/employee and/or 

        o how he or she imagines his or her co-worker/employee in the nude or in any sexual manner;

• • inappropriate compliments, such as:

        o telling a co-worker/employee that he or she has great legs or a great [fill in the blank with a body part] and/or

        o whistling at an employee/co-worker as he or she walks by you;

• • blocking or impeding movements, so an employee feels trapped; and

  • physical touching, which may include:

        o   lingering hugs that make you feel uncomfortable;

        o   kisses on the cheek;

        o   a superior putting his hand on the small of your back, particularly for an extended period of time; and/or

        o   sniffing a co-worker/employee.

All of the above come from real cases.  If any of this sounds familiar, please contact our office immediately to discuss your case.

What if I was only harassed one time, does that still count as sexual harassment?

Yes.  However, if you were only harassed one time, generally, it must be pretty severe and/or followed by retaliation and/or wrongful termination.  (Hughes, supra, 46 Cal.4th at p. 1043.)

Can I still file a claim if I was sexually harassed but said nothing in response?  

Yes.  “Conduct is unwelcome when the employee did not solicit or incite it and regards it as undesirable or offensive.” (Murphy, supra, at § 4.51.)  Thus, for the above conduct to qualify as unwelcome, the co-worker/employee need not throw a tantrum or run out of the office screaming.  The mere fact that the victim did not ask to be hugged, touched, propositioned, etc. is enough.  

More importantly, it is not uncommon for women “to become immobilized in the face of sexual assault.”  (People v. Barnes (1986) 42 Cal.3d 284, 299.)  This so-called “frozen fright” may “resemble cooperative behavior but does not necessarily amount to a consensual act.”  (Id. at pp. 299, 306.)  What is common with sexual harassment is for victims to feel embarrassed or ashamed that they did not do more.  They should not feel this way!  Frequently, victims reflect on the incident and think, “I wish I had slapped him!” or “I wish I had screamed that it was not okay!”  The problem is many women have no problem doing or saying such things when a stranger grabs or harasses them at the bar, but when a co-worker and/or supervisor whom they trust and see a daily basis grabs them, they freeze.  The act is shocking, and their brain needs time to process it.  

If you are concerned you did not have a “strong enough” reaction to sexual harassment, please do not “beat yourself up” about it.  To reiterate, it is quite common to freeze up in the moment.  More importantly, it does not mean you do not have a valid claim for sexual harassment.    

What qualifies as retaliation?

Retaliation arises when someone reports or participates in the investigation of sexual harassment or discrimination, and then, experiences negative and different treatment from his or her supervisor as a form of “retribution.”  Retaliation can occur in the following situations:

• • issuing the victim written warnings for actions that other employees have performed but for which they were never punished;

  • giving the victim a negative performance review;

  • burying the victim with excessive work such that the employee cannot keep up with his or her workload;

  • ignoring the victim;

  • bullying the victim;

  • gossiping about the victim;

  • giving the victim undesirable work assignments; and/or

  • “setting the victim up for failure” to create a reason for termination. 

If I have been sexually harassed and then terminated, should I accept a severance payment and sign a separation agreement?

It depends, but you should unquestionably consult an attorney prior to doing so.  More importantly, do NOT let your employer pressure you into signing something and not allowing you enough time to consult an attorney.  Most severance agreements will include a release along with a waiver of your rights under California Civil Code, section 1542.  This means that once you sign the agreement, you will not be able to sue your employer regarding any claims that you knew about or should have known about related to the claims and/or issues discussed in your agreement.  In other words, you cannot accept the severance payment and sign the agreement if you plan to sue your employer later.

Can employers be held liable for the actions of any employee or supervisor?

Yes.  Employers are held strictly liable for FEHA violations based on the conduct of the supervisors they employ.  (See Kelly-Zurian v. Wohl Shoe Co. (1994) 22 Cal.App.4th 397, 415, 422.) 

How can employers comply with their duty prevent harassment?

Employers should have written policies setting forth (1) what qualifies as sexual harassment; (2) to whom employees should report sexual harassment when it occurs; (3) the repercussions of sexual harassment; (4) that complaints of sexual harassment will, to the extent allowed by law, will be kept confidential; and (5) an express prohibition against retaliating against employees who report sexual harassment.  The following policies, most of which are already required by law, will also help discourage sexual harassment in the workplace:

• Complying with Workplace Posting Requirements: California law requires employers to post various posters in the workplace, which can be found here: https://www.dir.ca.gov/wpnodb.html, some of which cover workplace discrimination and harassment.  By posting these around the workplace, employers not only comply with their legal obligations but also may prevent harassment by educating employees on sexual harassment.  For example, this bulletin from the Department of Fair Employment and Housing (“DFEH”) should be posted around the office: https://www.dfeh.ca.gov/wp-content/uploads/sites/32/2017/06/DFEH_SexualHarassmentPamphlet.pdf.  

• Creating an Employee Handbook and Requiring Employees to Acknowledge Reviewing It:  In addition to posting bulletins in visual places throughout the office, such as the break room, employers should also develop an employee handbook and should not let any new employees begin working for the employer until they sign an acknowledgement confirming they have read the handbook.

• Comply with Obligations to Have a Written Policy on Harassment, Discrimination, and Retaliation:  Effective April 1, 2016, California required all employers to adopt a written discrimination, harassment, and retaliation policy and obtain employees’ acknowledgement that they received the policy.

• Train Your Employees!  California employers with fifty (50) or more employees must provide at least two (2) hours or classroom or other training and education on sexual harassment to all supervisory employees within six (6) months of any employee assuming a supervisory position.  Supervisory employees must complete such training once every two (2) years, and since 2015, such training must also include a portion covering “abusive conduct.”

• Investigate (and Never Ignore) Complaints: It is unlawful for an employer that knows or reasonably should know of harassing conduct to fail to take immediate and appropriate corrective action.  (Gov. Code, § 12940, subd. (j).)  

How long do I have to pursue a claim for sexual harassment?                      

If you have experienced acts of sexual harassment or retaliation and plan to pursue your claim with the DFEH, you must file a claim within one (1) year of the last act of harassment or retaliation.  (Gov. Code, § 12960., subd. (d).)  This is a shorter statute of limitations when compared with most labor and employment claims, so you should contact an attorney as soon as possible.  Even if you are unsure of whether you want to pursue your claim, our office offers free thirty (30) minute consultations and would be happy to discuss your options with you.  

Because both Title VII and the FEHA apply, a sexual harassment victim has both a federal claim for relief and a state law cause of action against his or her employer.  Federally, the Equal Employment Opportunity Commission (“EEOC”) prosecutes claims of discrimination, while the Department of Fair Employment and Housing (“DFEH”) investigates claims brought under the FEHA.  Both of these departments have a “work sharing agreement,” pursuant to which a charge filed with one is also deemed filed with the other agency.  However, if you plan to pursue your complaint with the EEOC, you have even less time to pursue your claim: you must file your complaint with the EEOC within 300 days from the last act of harassment.

Does sexual harassment have to occur in the workplace for me to be able to report it?

No.  Sexual harassment need not occur in the office.  (Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1048 [“Precedential decisions of the Fair Employment and Housing Commission have recognized that while the harassing conduct need not occur in the workplace, it must occur in a work-related context”].)  “Unwelcome sexual conduct perpetrated by an agent, supervisor, or coworker, which occurs elsewhere but is in some fashion work-related also constitutes sexual harassment within the meaning of the Act.”  (Ibid; see also DFEH v. Bee Hive Answering Service (June 7, 1984) FEHC Dec. No. 84-16, at p. 19 [finding sexual harassment where a supervisor exploited his authority to compel an employee’s attendance at several meals away from the office]; Myers v. Trendwest Resorts, Inc. (2007) 148 Cal.App.4th 1403, 1421-22 [the plaintiff’s FEHA claim against her employer survived the employer’s motion for summary judgment even though she alleged sexual harassment occurring offsite, once on the side of the ride, and a second time at her supervisor’s house].)

Sexual harassment can frequently occur during work trips, during after-work office happy hours, or at off-premises work holiday parties.  The allegations that Matt Lauer assaulted an employee while covering the Sochi Olympics show that an employee can, indeed, report harassment that takes place outside of the office and outside of work hours.

Does sexual harassment have to occur during work hours?

No.  Sexual harassment also need not occur during work hours.  (See, e.g., DFEH v. Hart and Starkey, Inc. (Sept. 14, 1984) FEHC Dec. No. 84-23 [holding the employer liable for acts of an employee while off duty but on the premises].)  “For social pursuits on the premises after work, an employer was liable if (1) it endorsed the activity by express or implied permission and (2) the activity was conceivably of some benefit to the employer or was a customary incident of the employment relationship.”  (Capitol City Foods, Inc. v. Super. Ct. (1992) 5 Cal. App.4th 1042, 1049 [holding that the plaintiff’s presence at her supervisor’s home, after work hours, constituted a sufficient nexus, at least for pleading purposes, to show the plaintiff’s assault and rape occurred in a work-related context]; see also Rodgers v. Kemper Constr. Co. (1975) 50 Cal. App.3d 608, 618-20 [holding the employer liable for social pursuits on the premises after work].)  Thus, as long as the harassment occurs in a work-related context, an employer may be held liable.  (Capitol City, supra, 5 Cal. App.4th at p. 1045; see also Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1051 [holding that the plaintiff’s presence at his supervisor’s home was, at least for pleading purposes, a sufficient nexus to show that the assault and rape occurred in a work-related context].)

Do I have to be the one that was harassed to file a claim?

No.  Even if you were not the employee who directly experienced the harassing conduct, if you witness co-workers being groped, spoken to inappropriately, and/or propositioned, you can still file a claim for hostile work environment sexual harassment.  

What if I am afraid/embarrassed to sue?

First, you should not feel embarrassed or ashamed about what happened to you.  It is NOT your fault.  While you may be thinking, “I never thought this would happen to me.  Did I do something to deserve/provoke it?” you should stop this immediately.  No one deserves to be sexually harassed regardless of how they dress or behave.  Again, you should not feel embarrassed.  You should also keep in mind that by not speaking up about what happened to you, the harasser will likely continue his or her behavior, meaning someone else will become the next victim.  

It is not uncommon for victims of even the most minor sexual harassment (although no sexual harassment is minor!) to lose the desire to get out of bed in the morning; experience anxiety and/or fear about returning to work and facing their harasser; and/or struggle from post-traumatic stress disorder.  If you experienced sexual harassment, you should consider speaking with a licensed psychologist as any person would likely need to discuss his or her experience with a licensed professional.  

Even if you ultimately decide you do not want to pursue your claim, you should still contact our office to understand and weigh your options.  

Who will pay for my attorneys’ fees?

Whether any attorney will accept a sexual harassment case on a contingency fee varies case by case.  Nonetheless, even if you end up paying for your attorney out of pocket, you may be able to recover your attorneys fees from your employer if you win your case.  (Gov. Code, § 12965, subd. (b) [providing that courts have discretion to award the prevailing party to a civil action pursuing an employer for an unlawful employment practice, such as discrimination, reasonable attorneys fees and costs, including expert witness fees.].)  Of course, in order to recover your fees, you must clear several hurdles by (1) winning your case or reaching a settlement in which the other side agrees to pay for your legal fees and/or (2) if you won your case in court, the court must exercise its discretion to award you your attorneys fees.

What can suing get/do for me?

A victim of sexual harassment may benefit from bringing a lawsuit by using the lawsuit to (1) recover monetary damages; (2) seek reinstatement of employment; and (3) and/or seek an injunction forcing the employer to change its sexual harassment policies (or create policies to begin with) for the future.

With respect to monetary damages, where applicable, sexual harassment plaintiffs may pursue damages for lost wages, emotional distress, attorneys fees and costs, interest, and in cases where the employer knew of the harassment, punitive damages.

Below are some examples of recent sexual harassment settlements and/or verdicts.  These are meant to provide insight into recent cases and are by no means a guarantee, promise, or representation that your case would produce a similar result.