While sexual harassment has been an issue for some time, as the knowledge of what constitutes sexual harassment has spread, more and more people have been coming forward with their stories recently. Sexual harassment is illegal, both at the federal level and under California law.
To help you understand more about this topic, we’ve built a guide to California’s sexual harassment law that includes everything you need to know about the issue.
What Is Sexual Harassment Under California Law?
Title VII of the Civil Rights Act of 1964 prohibits sexual harassment under federal law, while California’s Fair Employment and Housing Act does the same on the state level. Both these statutes consider sexual harassment as a form of employment discrimination. But what actions count as sexual harassment? Under federal and California sexual harassment law, these activities in the workplace constitute as sexual harassment:
- Derogatory slurs, jokes, epithets, or comments.
- Unwanted sexual offers.
- Offering benefits in exchange for sexual favors.
- Adverse impacts following a complaint about harassment, including loss of benefits or employment.
- Displaying or giving out sexually suggestive pictures, posters, cartoons, or objects.
- Having someone block or impede your movements.
- Unwanted physical contact.
- Discussion of sexual acts.
- Threats to endanger your conditions of employment or benefits if you don’t comply with a sexual request.
- Rude gestures and leering.
- Sexually suggestive or obscene messages, graphic comments, and sexually degrading words.
Note that some actions on this list, if welcomed by the recipient, would not count as sexual harassment—such as an employee asking out their coworker and the coworker agreeing to go on a date. However, an action being “welcome” at one point does not mean that it cannot become “unwelcome” in a later circumstance. While Title VII only applies to employers with fifteen or more employees, California’s sexual harassment laws apply to all private, state, and local employers, regardless of their workforce size. These extensions also to other workplace bullying California laws and protections.
What’s the Difference Between Quid Pro Quo and Hostile Work Environment Sexual Harassment?
Further, these acts of sexual harassment can fall into two major categories: quid pro quo and hostile work environment. Some actions can, depending on the circumstances, fall into both categories.
Quid Pro Quo Harassment
The name for this type of harassment comes from a Latin phrase that roughly translates to “this for that.” In this type of sexual harassment, a supervisor or someone of higher rank and influence impacts your work conditions in return for a sexual favor. This behavior can include accepting sexual advances or agreeing to another form of sexual favor.
The conditions offered in quid pro quo harassment can be either positive or negative. For example, an employee may be offered a raise if they agree to a sexual advance; alternatively, an employee may be told that they will lose their job if they do not comply. This category of sexual harassment can also apply to hiring a job applicant in exchange for a sexual favor.
Whether the harassment is implied or explicit, it can still constitute a quid pro quo.
Note that the perpetrator in this type of harassment must have the authority to follow through on their threats or promises for the circumstances to fall under quid pro quo. If not, the behavior can still qualify under sexual harassment California definitions that create a hostile work environment.
Hostile Work Environment Harassment
Typically, other types of harassment that do not qualify as quid pro quo fall under the category of hostile work environment. In this case, the harassment has reached a level that has impacted your work or creates an intimidating work environment.
Classifying a case of hostile work environment depends on both the severity and pervasiveness of the action. For example, having someone restrict your movements or demand sexual favors may be threatening enough to create a hostile work environment.
On the other hand, an employee that asks a coworker out once would likely not create a hostile work environment. However, if they continue to pursue that coworker, despite being turned down several times, the action’s pervasiveness could then constitute harassment.
The legal definition for determining a hostile work environment includes two major qualifiers:
The objective component: any reasonable person in the harassed person’s position would also find the circumstances hostile, abusive, or offensive
The subjective component: the harassed person experienced some form of emotional stress that interfered with their well-being or ability to perform their work
Additionally, courts will also consider the severity of the actions, how often the behavior occurred, and the context of the events.
Hostile Work Environment Can Apply on a Larger Scale
While the person directly harassed by the perpetrator will likely become impacted by the hostile work environment, others can.
In the case of an employee regularly making inappropriate jokes or comments, anyone who hears them could be a victim of harassment, even if the employee does not directly say them to a person. Likewise, witnesses to regular unwanted physical touches can also fall into this category.
Quid Pro Quo Can Lead to a Hostile Work Environment
It’s also possible for quid pro quo harassment to create a hostile work environment. Employees may suffer mental distress from worrying if they will become a victim of a supervisor’s behavior. Additionally, these other employees may also be in a hostile work environment due to sexual favoritism in the workplace.
What’s the Difference Between Sexual Harassment and Sexual Assault?
While sexual harassment includes many acts, sexual assault includes the forcing of an unwilling party to engage in sexual contact and actions through violence, incapacitation, or coercion. Sexual assault is also a crime, but it can include vastly different legal repercussions than sexual harassment. If you are a victim of sexual assault, you should:
- Report your incident to the local police.
- See a health care provider.
- Consider contacting a crisis hotline.
- Reach out to friends, family, and community agencies for support.
For further help, see the state of California’s page of sexual violence resources.
Who Can Commit Workplace Sexual Harassment?
Potentially anyone is capable of committing sexual harassment in a workplace environment. While supervisors and bosses are a typical image, they are not the only ones who can harass an employee. Harassment can come from:
- Company owners;
- Independent contractors;
- Supervisors and bosses;
Though all of these groups can commit sexual harassment, only some can commit quid pro quo. After all, the perpetrator needs to have the authority to impact the harassed employee’s job. While the stereotypical image of sexual harassment in the workplace is often a male supervisor harassing a female employee, that is not the only scenario that can happen. People of all genders and sexualities are capable of sexually harassing others.
California sexual harassment law also includes situations like derogatory comments or jokes made about an employee’s sexuality. These acts, if pervasive, can create a hostile work environment.
How Does Liability Work in California Sexual Harassment Cases?
Additionally, who commits harassment can have an impact on liability. While the person who conducts the harassment will always be liable for their actions under California law, some circumstances can have the employer themselves also be responsible for the act.
An employer can become liable for sexual harassment conducted in their workplace in a variety of circumstances. The first case is if the employer or a supervisor within the hierarchy committed the harassment.
In this circumstance, the employer is “strictly liable” under California law. This means that the employer becomes a responsible party, regardless of whether they knew the supervisor was harassing an employee. The employer is also liable even if they took corrective action for the circumstances.
Under California’s Code of Regulations. Employers are responsible for teaching their employees appropriate workplace behavior. This same law requires companies to have an active sexual harassment policy and to ensure their employees are aware of the details—including how to report any harassment.
However, this situation is not the only one where an employer can be liable for harassment within the workplace.
Employer Liability in Cases of Coworkers and Third Parties
When a coworker or a third party sexually harasses an employee of a company, the employer can potentially be liable if they meet the following conditions:
- The employer knew or should have known that the harassment took place, AND
- The employer failed to take corrective action.
If an employer meets these two requirements, then the court can hold them responsible due to negligence. However, they must meet both criteria to sustain liability. If the company knew about the harassment and took steps to intervene in the situation, they would not be liable. Even if the employer was not liable for sexual harassment, then the harassed employee can still pursue a case by holding those directly responsible liable.
Appropriate Corrective Action for Third Parties
For employees that commit sexual harassment in the workplace, the employer has a more direct correction to provide corrective action. For third parties who don’t work for the same company, establishing corrective action can lead to different situations.
- Correction action against a third party can include:
- Kicking abusive customers away from the company premises.
- Reassigning the harassed employee off a project that requires them to interact with a known harasser.
- Ending business relationships with harassing clients.
- Moving harassed employees to locations where they do not have to interact with a third-party harasser, such as a delivery person.
While California’s Fair Employment and Housing Act originally only had the language to prevent sexual harassment from third parties, it received an update in 2018 to prohibit all types of possible workplace harassment by non-employees.
Who Has the Right to File a Sexual Harassment Claim?
While many situations involving workplace harassment involve employees of a company, these people are not the only ones who have the right to file a sexual harassment claim. This right extends to any person who has suffered from sexual harassment in a workplace setting. Other groups aside from direct employees who may file a sexual harassment lawsuit include:
- Job applicants,
- Unpaid interns,
- Those providing services to a company under a contract.
Even a situation such as the hiring process, sexual harassment can occur if an interviewer attempts to gain romantic or sexual favors from a job applicant in exchange for guaranteeing their hire. Even though the applicant does not yet work for the company, this situation still constitutes sexual harassment.
When Can I File a Sexual Harassment Lawsuit?
Anyone who has experienced sexual harassment in the workplace, as defined by Title VII and FEHA, may file a complaint. However, before you can file a sexual harassment lawsuit, you must first complete a report to your employer before you can file a civil lawsuit.
Under FEHA, each employer in California must have a sexual harassment policy in place. You should follow your workplace’s complaint procedures. Even if your employer does not take appropriate corrective action, establishing a complaint in the workplace can later help your lawsuit case.
After you have followed your workplace’s sexual harassment complaint procedures, you can then move on to filing a Discrimination Complaint with a government agency. Both the Equal Employment Opportunity Commission and California’s Department of Fair Employment and Housing can accept these complaints.
The organization may conduct its own investigation into the incident. Depending on the outcome of the investigation, the DFEH may file their own lawsuit on your behalf. If the DFEH does not, they will issue a right to sue letter.
Upon submitting a formal complaint and receiving a right to sue letter, you may then file a sexual harassment lawsuit against the offender and/or your employer if they are liable in your specific circumstances.
While you may not be able to file a legal claim against the offender until you have completed the above steps, a sexual harassment lawyer can still help you with all the required steps to ensure that your claim can proceed smoothly.
Impact of Work Activity on Your Claim
Previous wording on FEHA made one of the requirements for filing a sexual harassment claim that the harassed employee must have had their work productivity impacted to have a valid case. The 2018 revisions to FEHA changed the wording of this requirement so that the harassed employee only needs to show that their job has become more difficult due to the harassment.
With that in mind, though, these amendments do not have the same binding legal power as a statute. Some appeals courts may follow these changes.
Waived Rights to Filing a Claim Against Your Employer
Language in a work contract or other signed may indicate that an employee has waived their rights to sue or disparage their lawyer. However, because of California Senate Bill 1300, any signed agreement that meets these conditions is not legally binding.
Specifically, California employers cannot make their employees release the employer from liability in exchange for employment, continued employment, a raise, or any other bonus. Even if you have signed an agreement with these terms, you still have the right to pursue a sexual harassment lawsuit, so long as you follow all the appropriate steps.
While an employer cannot require an employee to give up their right to sue their workplace, it is possible to reach a negotiated settlement to resolve an active lawsuit.
Additionally, California Senate Bill 820 does not allow for any settlement offers to require a gag provision, preventing the involved parties from discussing the harassment. If an agreement does include these terms, it is not enforceable.
A knowledgeable sexual harassment lawyer can help you determine if a settlement is the best option for you.
Statute of Limitations
A statute of limitations indicates the timeframe after the incident that an affected person can file a complaint or lawsuit. As of January 2020, California’s Bill AB-9 extended the statute of limitations deadline for filing a sexual harassment complaint.
With this law in place, the statute of limitations is now three years from the date of the most recent sexual harassment behavior experienced. Within this time frame, the harassed employee must file their official complaint with the California DFEH.
The EEOC has a shorter statute of limitations on filing an official complaint, with a time limit of within 180 days of the most recent sexual harassing experience. If a harassed employee is also filing a claim with the DFEH, EEOC extends the statute of limitations to 300 days.
After the DFEH or the EEOC has completed their investigation and issue a right to sue letter, you have one year to file a sexual harassment lawsuit.
These updated California statutes of limitations also apply to other forms of workplace discrimination claims, as defined by FEHA.
Statute of Limitations for Incidents Before the Enactment of AB-9
The language of AB-9 indicates that the bill cannot “be interpreted to revive lapsed claims.” While interpretations of this wording may vary, it may be in the best interest to act as if any incidents that occurred before January 2020 still only have a one-year statute of limitations to file a complaint with the DFEH.
What Damages Are Recoverable in a Sexual Harassment Lawsuit?
Depending on the specific circumstances of a sexual harassment lawsuit, it is possible to recover a variety of damages. These can include:
- Pain and suffering,
- Loss of reputation,
- Back pay,
- Front pay.
A sexually harassed employee may receive only some or all of these damages, depending on their case. A California sexual harassment lawyer can help you identify which damages you have the right to in your circumstances. Courts may also award costs for attorney’s fees, court costs, expert witness fees, and punitive damages to the winning party in a lawsuit. Under California Senate Bill 1300, employers can only recover these damages if the claim was frivolous.
What Does the California Fair Employment and Housing Act Require from Employers?
California’s FEHA includes provisions that protect people against sexual harassment, but it also makes it unlawful for other types of discrimination to occur, such as those against people due to their race, religion, national origin, gender identity, and more. Note that sexual harassment can happen in the context of other types of discrimination, such as workplace harassment California cases. Under the FEHA, all employers have a responsibility to prevent and promptly correct any discriminatory conduct and harassment in the workplace. In regards to sexual harassment, employers must provide their employees with information about sexual harassment and have a written policy that indicates all protected classes of those covered by the law. Said policy must also discuss:
- That the law prohibits all employees, supervisors, managers, and other third parties from engaging in sexual harassment
- How the employer will handle the complaint;
- That the employer will provide as much confidentiality as possible;
- How the employer will respond to the person filing the complaint;
- That the complaint will have a qualified person investigate;
- That the employer will document the investigation;
- That the employer will take appropriate remedial actions and ensure a timely closure;
- How an employee can report an incident to a person other than their direct supervisor;
- That supervisors must report harassment complaints to a designated representative;
- That no employee will undergo retaliation for filing a complaint or participating in a harassment-related workplace investigation.
FEHA also requires employers to:
- Ensure that all employees receive the policy;
- Provide a translation of the policy if the facility’s workforce has a population of non-English speaking personnel that at least reaches ten-percent;
- Provide supervisory employees with sexual harassment training within six months of assuming their duties and at least once every two years, if an employer has more than fifty employees.
If an employer does not provide appropriate sexual harassment training, there is a chance that they may be liable for a sexual harassment case that took place inside their workplace.
Tips for What to Do If You Experience Sexual Harassment in the Workplace
Experiencing sexual harassment in the workplace can be overwhelming, and it can be challenging to understand the best steps to take. It is essential to remember that you have rights and that both federal and California state laws require your employer to respond appropriately to sexual harassment promptly.
Read Your Employer’s Sexual Harassment Policy
As required by law, your employer must have a sexual harassment policy that all employees can access. If you are unfamiliar with the steps to report a harassment incident in your workplace, your employer’s sexual harassment policy should include these steps.
Record and Report the Incidents
After familiarizing yourself with your employer’s process for reporting a sexual harassment complaint, you should follow the steps as carefully as possible. This can include filling out a form, sending an email to HR, or a variety of other approaches. Whatever the process, you should keep a copy of your reports for yourself as well. Whenever sending a report by email, it’s best to request a delivery and read receipt to keep track of when the appropriate party has received your report. Details to include in your reports are:
- Who was responsible for the harassment;
- The extent of the harassment;
- When the harassment occurred, and any subsequent times the harassment has continued;
- The names of any witnesses to the harassment;
- The names of anyone you told about the harassment;
- When you told these people about the harassment.
Even if you suspect that your employer may not respond with appropriate action to your report, you should still report the incident anyway, as this can help your case. If the policy indicates that you should report the incident to your direct superior and they are the person responsible for harassing you, review the workplace policy to see who the alternate option for reporting is. If your employer does not take appropriate action in response to your complaint, you can then report it to the DFEH or the EEOC.
Remember That You Can Report Cases That Impact Other People
If you have been a witness to sexual harassment that wasn’t directed at you, that does not mean you are ineligible to file a complaint. Incidents like this can contribute to a hostile work environment, which can impact several people, not just the person that any inappropriate remarks or acts were directly made towards. You also have a right to make a complaint about these incidents.
Remember That You Do Not Need to Fear Retaliation
In cases of harassment, especially those perpetrated by a superior or boss, you may fear that filing a report may negatively impact your job, income, benefits, or other situations. Retaliation against anyone who has submitted a complaint about sexual harassment is illegal.
Discuss Your Options With an Experienced Sexual Harassment Lawyer
Sexual harassment in the workplace can occur in various ways, making it difficult to determine the best option to follow. An experienced sexual harassment lawyer can take away the stress of attempting to understand the complexities of state and federal sexual harassment law and provide advice geared towards your specific circumstances.
Your lawyer can also advise you on the statute of limitations so that you can make your complaint in a timely manner.
Keep as Much Evidence as Possible
Being on the receiving end of sexual harassment is a stressful and frightening experience. If you’ve experienced sexual harassment through a text, email, note, or another form of message, you should not delete them. After all, these messages can serve as valuable evidence, both in making your initial complaint and potentially filing a lawsuit.
While you may want to gather evidence in the form of an audio recording of a conversation, you should not do this. California law requires any recordings of private conversations or telephone calls to have prior consent.
Be Cautious of Discussing the Situation on Social Media
Social media has become a part of our lives, and, for some of us, it’s second nature to record all our experiences online. If you move forward with a lawsuit, though, discussing the incidents and your case’s progress on social media can potentially become a detriment.
In some circumstances, posting information on social media may give the harasser in your case the opportunity to cast doubt on your story, discredit you, or even make an argument to reduce the number of damages you receive. Sharing information about your case online can also negate any confidentially protections your complaint may have had.
In general, it’s best not to talk about any lawsuit on social media just to be safe.
Remember That You May Not Be the Only Person the Perpetrator Has Harassed
In some cases, you may have only experienced what could be a harassing comment or situation once. You may also not find the experience particularly offensive at the time. Even so, it is essential to keep track of these situations, and not only because they may repeat and become pervasive later.
A harasser may target multiple people, and your experience may just be one incident of many. Reporting the event can help HR keep track of that person’s behavior.
Even if you do not feel threatened by an action, keeping track can help corroborate someone else’s report in the future.
Do Not Talk Yourself Down by Thinking You Are Too Sensitive
Whenever someone complains about feeling uncomfortable because of a sexual joke or action, a typical put down can be “It was just a joke” or “You’re too sensitive.” Often these comments can cause doubt.
However, when it comes to sexual harassment, even if the perpetrator intended for something to be a joke, it can still count. A situation does not need to end in a lawsuit for you to have a valid reason to file a complaint. Even if an investigation rules that harassment was not occurring in a legal sense, it is better to make a report, especially since you will not face retaliation.
If you or anyone you know has been a victim of sexual harassment in the workplace, contact our Los Angeles Sexual Harassment Lawyers, Orange County Sexual Harassment Lawyers, or San Diego Sexual Harassment Lawyer for a free consultation and see what we can do for you.