Sexual harassment at the workplace is more common than one would hope. According to a recent study conducted by EEOC, one out of four women, and one out of five men have experienced sexual harassment. Therefore, anyone who has become a victim of sexual harassment is not alone. The law that seeks to protect employees from sexual harassment in the workplace is under Title VII of the Civil Rights Act of 1964 and California’s Fair Employment and Housing Act.
What amounts to sexual harassment?
Not every sexual advancement amounts to sexual harassment. In the workplace, there are two forms of sexual harassment recognized:
- “Quid pro quo” sexual harassment occurs when a supervisor or someone in a higher authority than the victim seeks sexual favors in exchange for providing workplace benefits (e.g. promotion, etc.); and
- Hostile work environment which occurs when a supervisor or someone in a higher authority than the victim makes unwelcome sexual advances, comments or conduct are pervasive or severe enough to make the work environment hostile for the victim.
The defendant’s/perpetrator’s offensive conduct can be visual, verbal, or physical conduct of a sexual nature which are intimidating, hostile, or offensive in the work environment based on an employee’s sex.
“Quid pro quo” sexual harassment
Supervisors/bosses who demand sexual favors for a workplace benefit are the ones who commit “quid pro quo” sexual harassment.
The victims/workers need to prove the following to prove sexual harassment:
- They worked for the defendant, applied for a job with the defendant, or provided services to the defendant;
- The defendant made unwanted sexual advances or other conduct described above towards the victim
- The defendant implied a favorable working (whether by words or insinuation) in return for those sexual requests,
- The worker was harmed by this harassing conduct, and
- The supervisor’s/defendant’s actions were a substantial factor in that harm.
The following are the benefits which the supervisor/defendant can impliedly or expressly promise:
- A promotion
- A salary raise
- A more favorable working schedule
- Choice of work assignment
- Hiring as new employee to job applicant in exchange for a sexual favor, or
- Not firing an employee.
What if the supervisor/boss does not promise those benefits by word of mouth? Can it still be sexual harassment?
Yes. The element of quid pro quo in sexual harassment does not require the supervisor to promise by word of mouth or in writing to promise the benefits or threats of getting fired/demoted in exchange for sexual favors. The conduct of the supervisor which implies quid pro quo sexual harassment is enough.
In order for sexual harassment to fall under quid pro quo category, there has to be repercussions for refusing sexual advances. Otherwise it falls under creating a hostile work environment.
The victim also has to prove a connection (causal connection) between the repercussions suffered from the supervisor and the victim’s refusal to comply with the supervisor’s sexual advances.
Sexual harassment and Hostile Work Environment
A hostile work environment is a product of getting sexually harassed.
Therefore, an employee who becomes a victim of sexual harassment can claim compensation against an employer where:
- The employee is a victim of unwelcome sexual advances, conduct or comment;
- This harassment has to do with the employee’s sex; and
- This harassment is either severe or pervasive enough to negatively alter the conditions of employment.
What makes sexual harassment claim create a hostile work environment is due the severity and pervasiveness of the supervisor’s conduct. In some instances, harassment may be: occasional, isolated, sporadic, or trivial.
What does the court consider in order to determine if harassment created a hostile work environment?
The courts consider the evidence available and whether based on the said evidence, it would be reasonable for any other person in the victim’s shoes to feel harassed. This is what is usually called the subjective test. The court does not consider the sensitivity of the victim to feel harassed but instead considers how an average normal person would be expected to react in the situation.
The court does take into account direct evidence only. Even indeed evidence is also considered if it proves harassment. For instance, stray remarks by co-workers can indicate a toxic working environment.
It is for the jury to weigh the evidence presented and decide whether the harassment was severe or pervasive enough.
So far we have been talking about the supervisor being capable of committing sexual harassment. Who else can do so?
Sexual harassment can be committed by a variety of people, not just work supervisors. These people may be:
- Supervisors or bosses
- Company owners
- Independent contractors or
But here is the tricky part. There is a big difference as to who commits sexual harassment as this determines if the victim can win a sexual harassment lawsuit. For instance, where sexual harassment was done by a person who is not an employee of the company, it is harder to hold the company liable for the conduct of that person.
What kind of compensation/ damages can a victim recover in a sexual harassment lawsuit?
The first thought that comes to the mind of a person who was a victim of sexual harassment is to make the defendant pay i.e. payback.
The following are some of the damages that the victim can recover:
- Back pay
- Front pay – where the employee cannot be rehired in the company
- Pain and suffering
- Mental anguish and
- Loss of reputation
The remainder of the list of damages can only be awarded by the court (only for the winning party) if the court so chooses, including:
- Attorneys’ fees,
- Punitive damages (in some cases),
- Court costs, and
- Expert witness fees.
Does this mean that if the victims lose their case they end up paying their abusers?
Yes! It sounds unfair. Right? However, recent amendments have been made to the law as to what kind of damages the employer can recover from the victim. Employers can only be awarded damages if the victim’s claim was frivolous/baseless.
What if the employer and the employee/victim agree to settle the matter? Can the employee be forced to stay quiet?
In some cases, the employee/victim and employer agree to settle the matter out of court. The employer might insert a clause in the settlement agreement where the employee/victim agrees to stay quiet about the whole thing (i.e. a gag provision). Is the employer allowed to do that? Fortunately, not. According to new law passed in January 2019, any provision in the settlement agreement that seeks to prevent the victim from disclosing information about the sexual harassment is invalid and the courts refuse to enforce such a provision.
What does the statute of limitation on sexual harassment claim say?
You might have heard of statute of limitation. Basically, the victim does not have all the time in the world to file a lawsuit in court. Each claim has its own time limitation within which the claimant/plaintiff must file it in court. If the claimant does not file the claim in court within the prescribed time then the claim dies.
In sexual harassment claims, the law requires the victims to file their claims in court before the statute of limitation expires. For sexual harassment that occurs in the workplace, the victim has to do administrative filing first. The administrative filing then goes to:
- The federal Equal Employment Opportunity Commission (EEOC), and/or
- The California Department of Fair Employment and Housing (DFEH).
- The statute of limitation for DFEH filings is three (3) years from the date when the most recent sexual harassment conduct was committed. This means that victim who wishes to file their claims with DFEH have to do so within 3 years from the date when the victim was sexually harassed.
Can the victim receive an extension if the 3 years are over?
Yes. But only if the victim learns of the sexual harassment behavior after 3 years have expired. However, the law only allows a 90-day extension to file the sexual harassment claim with DFEH.
EEOC filings on the other hand is done under federal law. The statute of limitation for EEOC filings is 180 days from the date when the most recent incident of sexually harassing was committed.
How do the EEOC or DFEH respond to the sexual harassment claims filed?
EEOC or DFEH will do the following upon filing of sexual harassment claims by the victims:
- Conducting their own investigations into sexual harassment incidents, or
- Issuing the victims with right to sue letters which allows them to file their claims in court
The victim has only one (1) year to file their suits in court once they have received the right to sue letters.
How can a sexual harassment attorney help you?
In California, a sexual harassment attorney can help provide the victim with advice on the victim’s right in the situation, how to proceed thereon including fling of a lawsuit in court claiming compensation from the defendant.
Anyone who has fallen victim of sexual harassment at the workplace potentially has a claim. The victims need not be employees of the company. The law protects: employees, job applicants, volunteers, unpaid interns etc.
We at Big Ben Lawyers have expertise and decades of experience in handling sexual harassment claims. You can give us a call for consultation if you feel like you or your loved one has been victimized through sexual harassment.
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