Sexual harassment that occurs in the workplace can come in many different forms, including:

  • An unwanted sexual advance;
  • A request for sexual favors;
  • Verbal and/or physical harassment of a sexual nature that would constitute sexual harassment; and/or
  • An offensive remarks about an individual’s sex.

To constitute sexual harassment, a comment does not have to be sexual in nature so long as it is an offensive comment about an individual’s sex. The harassment may come from any level of employee at the workplace, including:

  • A supervisor;
  • A coworker;
  • An employee from a different department; and/or
  • A client and/or customer.

Sexual harassment at the workplace is prohibited at the federal level under Title VII of the Civil Rights Act of 1964. At the state level, sexual harassment at the workplace is prohibited by the Fair Employment and Housing Act (FEHA). The FEHA is the primary source of sexual harassment law in California. Pursuant to both the FEHA and Title VII, sexual harassment is a form of employment discrimination.

It is important to note that California state laws apply to all private, local, and state employers. On the other hand, Title VII only applies to employers with 15 or more employees.

What are Examples of Conduct That Would Not Be Considered Sexual Harassment?

There are some interactions that would not be considered adequate grounds for a sexual harassment claim. These include:

  • Simple teasing;
  • Offhand comments; and/or
  • Non-serious isolated incidents.

For example, an offhand comment telling another employee they look nice today would not be considered sexual harassment.

Whether or not an action is sexual harassment can also be determined by the context and manner in which it is conducted. For instance, politely asking a coworker on a date one time would not constitute sexual harassment. However, asking a coworker on a date repeatedly after being rejected may constitute sexual harassment.

Additionally, consensual conduct would not be considered sexual harassment. For example, if two individuals employed at the same workplace are involved in a romantic relationship, they may engage in consensual sexual activity. That consensual sexual activity would not be considered sexual harassment, even if the individuals stopped dating at a later time.

It is important to note, however, that engaging in consensual sexual activity in the workplace may violate other workplace policies and/or create a hostile work environment for other employees.

What are the Elements of a Sexual Harassment Claim?

It is important to note that both men and women can be victims of sexual harassment. Additionally, same-sex harassment is prohibited.

There are two main types of sexual harassment claims, a quid pro quo and a hostile work environment. Both types of sexual harassment claims are recognized at the federal and state levels. A Quid pro quo harassment claim arises when a supervisor and/or other employee demands sexual favors in exchange for job security and/or a promotion).

The majority of coworker harassment claims relate to a hostile work environment. Usually, a single offensive act does not create a hostile work environment, unless that act was extremely serious and/or harmful. An individual must show an ongoing pattern of sexually offensive behaviors that a reasonable person would find offensive and intimidating.

If a customer, contractor, coworker, and/or other individual creates a hostile work environment and/or demands inappropriate sexual favors, an individual’s employer may be liable for damages. This can happen if the employer was aware, or should have known, of the harassment and the employer did not take appropriate measures to stop the harassment.

Harassment should be reported promptly. It is important for an individual to cooperate with their employer’s investigation. If the employer refuses to help and/or ignores an individual’s complaints, they should take legal action.

What Evidence is Needed in a Sexual Harassment Case?

An individual must have evidence supporting their sexual harassment claim in order to prevail. Evidence may include:

  • Any communications, including emails and voicemails, from the harasser;
  • The individual’s complaints;
  • The company’s responses, or lack of a response, to the individual’s claims;
  • The employee’s personnel and/or employment file;
  • The employee handbook and the employer’s written sexual harassment policies, if any exist;
  • Testimony from witnesses; and
  • Bills and/or other proof of harassment-related expenses.

An employee can usually request copies of their personnel files from their employer’s human resources department. There may be a copying fee associated with obtaining the records. Other communications may be difficult to obtain without the assistance of a lawyer and/or a government agency.

What Can California Employers Do to Prevent Sexual Harassment?

Employers are responsible for maintaining a workplace atmosphere where sexual harassment is discouraged. Employers can adopt a sexual harassment policy in order to promote a sexual harassment free workplace atmosphere.

Employers must also develop policies and procedures for processing sexual harassment complaints in the workplace. Employees must be notified of these policies and procedures.

In addition, employers can provide supervisors with sexual harassment prevention training for the workplace. Employers may also discourage and/or forbid intra-office relationships.

What Should You Do If You Have Been Sexually Harassed in California?

In some cases, an individual may not be aware and/or understand that their actions and/or words are offensive. If someone is being sexually harassed, they may wish to inform the harasser that their actions and/or words were offensive. At the very least, the harasser will be put on notice that their actions and/or words are offensive.

If informing the harasser their actions and/or words are offensive is ineffective, there are some steps an individual can take, including:

  • Documenting all instances of sexual harassment, including:
    • the date,
    • the time; and
    • the nature of the sexual harassment that occurred; and
    • finding a witness or witnesses who observed the sexual harassment;
  • Informing a supervisor and/or a manager and/or the human resources department at the workplace; and/or
  • If the sexual harassment persists, filing a claim with the human resources department at the workplace.

If filing a claim with the workplace human resources department does not resolve the sexual harassment issue, an individual can file a claim with a government agency. An individual can file a sexual harassment claim with the Equal Employment Opportunity Commission (EEOC). The EEOC will investigate the claim and may initiate an action with the employer of the claimant, or individual who filed the claim. The EEOC will inform the claimant’s employer that the claimant has initiated an action.

Filing a claim with the EEOC is a necessary first step. The majority of state laws required a claimant to exhaust all possible remedies prior to filing a lawsuit. It is important to note that the claim must be filed 180 days or 300 days from the last instance of sexual harassment. The 180 or 300 day requirement depends on whether or not there is a state law prohibiting sexual harassment and/or a state agency enforcing that state law.

If the EEOC does not pursue the claim on behalf of the claimant, they will provide the claimant with a Right to Sue Letter. This letter permits the claimant to file a lawsuit against their employer. A lawsuit is the final option available for a claimant who wishes to sue an employer for a sexual harassment claim.

The California Department of Fair Employment and Housing (DFEH) is the state government agency that investigates and prosecutes sexual harassment claims as well as other forms of discrimination. California employers are required to provide employees with basic information regarding sexual harassment as well as have a policy covering harassment, discrimination, and retaliation prevention.

Do You Need An Attorney For Your Sexual Harassment Issue?

Yes, it is extremely important to seek the help of a California lawyer if you have a workplace sexual harassment issue. Workplace sexual harassment is a serious, and usually stressful, issue that an individual must face daily. If you are unsure about the process for starting your sexual harassment claim, a harassment attorney will be able to help. An attorney can review your case, determine if a sexual harassment claim is available, and represent you during any court proceedings, if necessary.