Sexual Harassment in the workplace
Does sexual harassment really still exist? Who would dare? It’s unfortunate that it does still occur in the work place but luckily California labor laws aim to offer protection. There are basically two different ways one can be sexually harassed: quid pro quo or to the point of hostile work environment.
Quid pro quo sexual harassment
“This for that” is the direct translation of quid pro quo. This type of sexual harassment is when the harasser offers something in return for the harassed to accept these unwanted advances. For example, if your supervisor or manager offers a promotion or a raise or rather threatens with a write up or termination in exchange for the harassed to bare or accept the harassment.
Under California labor law, the employer is absolutely liable for the sexual advances of a supervisor and has no legal defenses available to it. A victorious plaintiff can recuperate lost wages and compensation of other economic losses, emotional distress damages, interest and attorney fees, and in cases where the employer’s officers, directors or managing agents knew of the harassment, punitive damages intended to punish or deter the employer.
Sexual Harassment to the Point of Hostile Work Environment
Subordinates, co-workers, supervisors, and even managers can all participate in sexual harassment to the point of creating a hostile work environment. Often times this harassment can come in the form of slurs, intimidation, taunting, groping, grabbing and ridicule.
It’s important to note that a single severe act of sexual harassment can create a hostile work environment as well as many subtle acts, by one person or many. Also the person being harassed does not have to be the one that files a claim. Someone else that has witnessed and had to deal with watching another person being harassed is also a victim of hostile work environment.
Recently, the California Supreme Court held that employer actions, such as termination, demotion, etc., could also constitute hostile work environment harassing conduct. See Roby v. McKesson HBOC (2009) 146 Cal.App.4th 63.
Who is liable?
If the Harasser is a supervisor or manager then the company is certainly held liable for their actions. If the harasser is a coworker or subordinate then company will be held liable if you are able to show that a supervisors or manager was aware of this persons inappropriate behavior.
Under Title VII of the Civil Rights Act of 1964
When a supervisor engages in hostile work environment harassment that does not involve tangible employer actions (e.g., termination, demotion), the employer can escape liability for HWE if the employer can show
1) employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior and
2) the employee unreasonably failed to take advantage of the preventive or corrective opportunities provided by the employer, or to avoid harm otherwise.
See Burlington Industries, Inc. v. Ellerth (1998) 524 US 742, 764–765;Faragher v. City of Boca Raton (1998) 524 US 775, 806. This is unfortunate in that many victims of sexual harassment do not immediately report it to their employers for fear of retaliation. Under federal law, these employees may be out of luck. This is one of the reasons why filing a sexual harassment claim under California rather than Federal law is usually the better course.
Labor law is complex if you have any questions regarding your employment it is recommended that you contact a California labor law attorney who can help you understand your rights and in many cases will review your situation without charge.
If you have any questions about this article or our blog, feel free to call us at:
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