California Sexual Harassment Law: The Definitive Guide

//California Sexual Harassment Law: The Definitive Guide
 
California Sexual Harassment Law: The Definitive Guide 2018-10-13T06:23:12+00:00

To anyone who has experienced sexual harassment in the workplace – you are not alone.   According to a recent EEOC study, one out of four women, and one out of five men have experienced sexual harassment.  

You need only read the news or do a search of #metoo to find endless stories of appalling conduct, much of which amounts to sexual harassment in the workplace.

But remember: sexual harassment in the workplace is against the law.

What is California Sexual Harassment?

If you have experienced any of the following in the workplace:

  •   Derogatory comments, slurs, epithets or jokes;
  •   Unwanted touching, such as back rubs, pats on the butt, pinching or “accidental” brushes against your chest or other parts of your body;
  •   Unwanted sexual propositions;
  •   Discussion of sexual acts;
  •   An offer of employment or other benefits in exchange for sexual favors;
  •   A threat to reduce your hours, benefits, the rate of pay, or otherwise hurt your conditions of employment if you     don’t comply with a sexual request;
  •   Loss of employment, benefits or other adverse impacts after complaining about harassment;
  •   Leering or rude gestures;
  •   Someone displaying or “giving” to you sexually suggestive objects, pictures, cartoons or posters;
  •   Graphic comments, sexually degrading words, sexually suggestive or obscene messages or invitations; or
  •   Someone impeding or blocking your movements;

… you do not have to tolerate it.  These behaviors can all constitute California sexual harassment.  

At the federal level, sexual harassment is prohibited under Title VII of the Civil Rights Act of 1964.  At the state level, the California Fair Employment and Housing Act, or FEHA, is the primary source of sexual harassment law. Under both Title VII and FEHA, sexual harassment is considered a form of discrimination in employment.

Both federal and state laws recognize two general types of sexual harassment — quid pro quo and “hostile work environment.”

Quid Pro Quo Sexual Harassment

Quid pro quo is a Latin phrase meaning “this for that” or “something for something.”  The phrase captures the idea of an exchange. Thus, quid pro quo harassment occurs when someone conditions your hiring, continued employment, promotion or benefits on your submission to sexual advances or some other kind of sexual conduct.  Quid pro quo harassment can be couched as an offer — or a threat.  This type of sexual harassment is considered serious enough that a single incident can give rise to liability.

Hostile Work Environment Sexual Harassment

“Hostile work environment” sexual harassment occurs when the nature of the offending behaviors are so pervasive or severe that it alters the conditions of your employment, unreasonably interferes with your work, or creates an intimidating, hostile or offensive work environment.

You can experience and suffer from a “hostile work environment” even if the behavior is not aimed at you.

A single act of harassment may, all by itself, be severe enough to be unlawful.  Similarly, behavior that is less severe may become so pervasive that it becomes unlawful, even if any single incident on its own was not particularly offensive, intimidating or hostile.

The legal test of whether something qualifies as “hostile work environment” sexual harassment includes both objective and subjective components.

Objectively, the behavior must be such that a reasonable person in the shoes of the victim would find it offensive, hostile or abusive.

At the same time, the behavior must also have actually caused the victim some sort of emotional distress.  This is the subjective part.  The harassment must be shown to have subjectively affected the person’s ability to perform their job, disturbed their mental state or otherwise interfered with their personal well-being.

In all, the following three factors are largely taken into consideration by the court when determining whether the conduct was sufficiently hostile, offensive and/or abusive to constitute sexual harassment: 1) the severity of the actions, 2) the frequency of the behavior, and 3) the surrounding circumstances and context.  In the final analysis, the inquiry is usually very factspecific.

While both federal and state laws both recognize quid pro quo and “hostile work environment” sexual harassment, how state and federal laws apply can vary in some important respects.  For example, California state law applies to all private, state and local employers. Title VII of the Civil Rights Act of 1964, on the other hand, applies only to employers with fifteen or more employees.

Generally speaking, California’s Fair Employment and Housing Act is more favorable to and protective of employees and is therefore considered the stronger of the two legal schemes to combat California sexual harassment. 

California Fair Employment and Housing Act

Under California’s Fair Employment and Housing Act, or FEHA, it is unlawful “to harass an employee … because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status.”  Section 12940.

(As you can see, that list covers a lot more than harassment on the basis of sex, so if you are suffering other kinds of harassment or discrimination in the workplace, you may also be protected by this law.)

The California Department of Fair Employment and Housing, or DFEH, is the state agency charged with investigating and prosecuting instances of California sexual harassment and other forms of discrimination in the state.  DFEH’s procedural regulations, found in Title 2 of the California Code of Regulations, provide additional rules governing employers obligations to provide a workplace free of  California sexual harassment.

These rules provide that employers have “an affirmative duty to take reasonable steps to prevent and promptly correct discriminatory and harassing conduct.”  Section 11023(a) (emphasis added).  Simply put, employers must create a workplace environment that is free from California sexual harassment and other employment practices prohibited by FEHA.

Employers must not only provide employees with basic information about sexual harassment (which can easily be done simply by providing employees with a copy of DFEH’s Brochure 185), but they must also have in place a policy covering harassment, discrimination and retaliation prevention.

The policy must:

  •      Be in writing.
  •      List all current protected classes of people covered by the law.  A “protected class” is a group of people who are protected from discrimination on the basis of a particular characteristic that they share.

In other words, an employer’s policy must explain that it protects against discrimination on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, and military and veteran status.  These are the “protected classes” currently listed in the California Code of Regulations.

  •      Indicate that the law prohibits, in addition to supervisors and managers, coworkers and third parties from engaging in California sexual harassment.
  •      Describe a process whereby the employer will:

■      Handle the complaint promptly

■      Provide as much confidentially as possible

■      Respond to the person complaining

■      Ensure the complaint is investigated by qualified personnel

■      Document the investigation and track the progress of the complaint and outcome

■      Take appropriate remedial actions and

■      Ensure timely closure

  •      Include a reporting option for employees to report incidents to someone other than their supervisor.  This could be via a complaint hotline, to an ombudsperson, or directly to DFEH or the EEOC.
  •      Instruct supervisors to report complaints of harassment to a designated representative, such as a human resources consultant.
  •      Indicate that the employer will conduct a fair, timely, and thorough investigation that provides all parties with the appropriate due process.
  •      Indicate that the investigation will reach reasonable conclusions based on the evidence collected.
  •      Explain that confidentiality will be maintained to the extent possible but that the investigation may not be completely confidential.
  •      State that if the investigation results in findings of misconduct, that appropriate remedial measures will be taken.
  •      Clearly state that employees will not be retaliated against for filing a complaint or participating in a workplace investigation.

Employers must also ensure that all employees receive the policy.  They may do so by providing a printed copy with an acknowledgment for the employee to sign and return, by sending the policy via email with an acknowledgment return form, posting current versions of the policy on their intranet site (with a tracking system that will ensure all employees have read and acknowledged receipt), by discussing the policies upon hiring or during a new employee orientation session, or in “any other way that ensures employees receive and understand” the policy.  

For employers whose workforce includes non-English speaking personnel of at least ten percent at any given facility, employers must also provide a translation of the policy in the appropriate language.

There are also some additional requirements for employers who have fifty or more employees.  These employers are required to provide training on California sexual harassment to all supervisory employees within the first six months of the person’s assumption of supervisory duties.  The training must be repeated by supervisors at least once every two years.

Although failure to provide California sexual harassment training does not automatically make an employer liable for sexual harassment, it will hurt an employer’s ability to defend itself.  This is because failing to train supervisors makes it hard for an employer to argue that it really took all reasonable steps necessary to prevent California sexual harassment in the workplace.

Who is liable for California sexual harassment claims?

Under California law, an employee who is the perpetrator of the harassment is personally liable for damages to their victim regardless of whether or not the employer knew or should have known about the harassment.

Employers are held “strictly liable” if the harassment was at the hands of a supervisor or if the perpetrator of the harassment was the employer.  This means if the harassment was perpetrated by the victim’s supervisor, the employer is responsible for the victim’s damages regardless of whether the employer knew or should have known about it and regardless of whether they took corrective action.

In addition, the employer is liable for damages if they knew or should have known about the harassment and failed to take immediate and appropriate corrective action to remedy it.

It is important to note, however, that under California law, there is no private, “stand-alone” cause of action under FEHA.  This means you cannot just directly file a lawsuit as your first course of action. Instead, you must first file an administrative complaint with the California Department of Fair Employment and Housing (“DFEH”) and obtain what is called a right-to-sue notice.  If DFEH decides not to bring its own civil action within 150 days of your filing of a complaint they must notify you and then you can request the right-to-sue notice from them. Only after you have received a right-to-sue notice may you file a lawsuit in court.

What Remedies are Available to Victims of California Sexual Harassment?

Victims of sexual harassment may have a right to recover monetary damages to compensate them for their losses.

If you prevail in your claims you may be entitled to the following remedies:

  •   Damages for emotional distress
  •   Hiring or reinstatement
  •   Back pay or promotion
  •   Changes in policies or practices of the employer

If you file a civil lawsuit and prevail, the court may also award reasonable attorney’s fees and costs, including expert witness fees.

In rare cases, punitive damages may also be available where an employer has committed an especially malicious or reckless act of discrimination, or where the employer has been shown to have engaged in malice, oppression or fraud.

California Civil Code Section 3294 governs awards of punitive damages under FEHA and defines what counts as “malice,” “oppression,” or “fraud”:

  •   Malice means “conduct which is intended … to cause injury … or despicable conduct carried on … with a willful and conscious disregard of the rights or safety of others.”
  •   Oppression means “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.”
  •   Fraud means an “intentional misrepresentation, deceit, or concealment of a material fact … with the intention … of thereby depriving a person of property or legal rights or otherwise causing injury.”

Under federal law, Title VII limits the amount of punitive damages available based on the employer’s size. So, for example, employers with fifteen to a hundred employees are not liable for more than $50,000 in damages, while employers with 500 or more employees may face punitive damages up to $300,000.

What to do if you are a Victim of California Sexual Harassment

DO:

★   Understand your rights.

Your employer has an affirmative duty to provide a workplace that is free of sexual harassment and to respond to incidents of sexual harassment with immediate and appropriate corrective actions.

★   Read your employer’s California sexual harassment policy.

Employers are required by the California Code of Regulations (2 CCR § 11023) to have a policy on sexual harassment and to ensure employees are made aware of the policy.  As described above, the policy must describe the process employees can follow to report harassment.

★   Report the incident(s).

Follow the procedures in your employer’s policy as much as possible when reporting an incident of sexual harassment.  Report the incident in writing or follow up with a writing documenting your report. If you send your complaint by email, request a “delivery” and “read” receipt.  Be sure to keep a copy of your initial complaint and all subsequent communications regarding the complaint.

When making your complaint about California sexual harassment, describe the incident in as much detail as you can.  Include the names of any witnesses to the incident. If there weren’t witnesses, did you mention what happened to anyone else?  Who did you tell and when? Having a witness or other form of corroboration is incredibly helpful to establish the truth of your claim to those charged with investigating it.

If reporting the complaint to your employer fails to resolve the problem:

★   Consider filing a complaint with the California Department of Fair Employment and Housing or the Equal Employment Opportunity Commission.

If your employer doesn’t adequately respond to your complaint, or if you think you have faced retaliation as a result of lodging a complaint, you should consider filing a complaint with DFEH or the EEOC.  (You do not have to file a complaint with both agencies.) When your employer knows about sexual harassment and fails to immediately and appropriately take corrective actions then the employer becomes liable to compensate you for your damages.  So if you have reported California sexual harassment according to your employer’s policy, and there is no response to your complaint, your employer may be held accountable under the law.

★   Consider seeking legal advice.

An employment attorney can help you understand how federal and state law would apply to the specific circumstances of your case.  An attorney also can help you understand your options, file a California sexual harassment complaint, determine what is and isn’t relevant, and evaluate whether or not it makes sense to file a lawsuit.  As you weigh alternatives (e.g., Do I stay, or do I go?), an attorney can also advise how different courses of action might help or hurt your case.

★   Think very carefully before sharing everything on social media.

Before you decide to share everything on social media, remember that any social media postings relevant to your case can be obtained by an employer or defendant and may be used in attempts to discredit you, cast doubt on your story and/or question the extent of damages you suffered.

While your private discussions with attorneys and health professionals are confidential, everyday conversations with your friends, family, co-workers and on social media are not generally confidential or protected.  Also, if you go around telling everyone what you told your lawyer and what your lawyer told you, those communications can lose the special confidentiality protections they would otherwise have had.

DO NOT:

★   Destroy or get rid of evidence of the harassing behavior.

Understandably, your first instinct may be to delete, erase or throw away any offensive message, note, text or email.  You should resist that instinct. Those offensive words, images, and texts are evidence that supports your claim and will be important in any investigation or lawsuit that may occur later. Not only should you preserve this type of evidence, but you should also take notes about what happened when it happened, where it happened, and who else might have witnessed the behavior.  Do this as soon after the event as possible.  If you are experiencing recurring incidents of harassment, do this for each incident.  Then, keep your notes in a secure place.

Fortunately, we live in a time when it is pretty easy to save and preserve evidence.  Taking notes these days can sometimes be as simple as getting out your phone and taking a picture with a time and date stamp.

That said, don’t make an audio recording of any conversations without obtaining the other person’s consent beforehand.  California is considered a “two-party consent” state.  This means it is a crime in California to record a private conversation or telephone call without the consent of all the parties being recorded.  This restriction also applies to video recordings that include audio. There are very few exceptions to this rule. Perhaps the most notable one is that you can record a police officer in the conduct of his or her official duties without the officer’s consent.  Generally speaking, though, unless you have obtained someone’s consent to record them, you should avoid doing so.

★   Wait too long before you act.

Under California law, you must file a complaint with DFEH within one year of the last act of harassment or retaliation.  There are also limitations on how long you can wait to file a complaint with the EEOC.  In most cases, the EEOC time limit for filing a complaint is 180 days (six months), but because California has its own anti-discrimination law, in California, the federal EEOC time limit for filing a sexual harassment complaint is extended to 300 days.  That does not allow a lot of time if you are the kind of person who’s inclined to “wait and see” whether things improve.

★   Think retaliation is allowed.

If you complain about California sexual harassment and your employer retaliates against you for complaining, your employer’s behavior only becomes more egregious under the law.

★   Accept the following as excuses for inaction:

○   “He/she told me he is not even attracted to you so that behavior can’t be sexual harassment.”

Under California law, “harassment” because of sex includes not only harassment motivated by sexual desire, but also gender-based harassment, and harassment based on pregnancy, childbirth, or related medical conditions. The law explicitly states that “Sexually harassing conduct need not be motivated by sexual desire.”

○   “The person you are complaining about is not one of our employees, so we can’t do anything about it.”

Employers have an affirmative duty to provide a working environment free from sexual harassment. Just because the person leering at you is a delivery person or a contractor, it does not make their behavior ok.  It is true that the extent of the employer’s control over the conduct of nonemployees will be considered in determining an employer’s ultimate liability.  However, employers still have a duty to take immediate and appropriate corrective action when they learn of instances of California sexual harassment.

○   “You’re just a temp (or intern or contractor) so we can’t do anything.”

In California, for purposes of the sexual harassment codes, the term “employee” includes unpaid interns, volunteers, and persons providing services pursuant to a contract.

○   “It was directed at your co-worker, not you.  She hasn’t complained, so why does it bother you?”

In California, you don’t have to be the person directly targeted in order to complain about California sexual harassment.  A hostile work environment impacts more than just the person at whom the actions are directed.  And of course, there are many kinds of behaviors that can create a hostile work environment that isn’t necessarily directed at anyone at all.

★   Assume you are the only victim of the perpetrator’s behavior.

To be considered harassment, the behavior must be severe and/or pervasive. The behavior you perceive as only mildly rude could be highly offensive to someone else. This is why, legally, the behavior must be both objectively and subjectively offensive to be deemed harassment.  You may experience some conduct as merely unwise and in poor taste, but not harassing.  You may, therefore, not feel motivated to complain on your own behalf. You should keep in mind, however, that the person’s actions could be impacting other people much more negatively.  

Here’s a true story.  A friend of mine worked her way through college as a file clerk for a large Bay area company.  At the company Christmas party, a male coworker asked her if he could kiss her feet. She interpreted this as a very bad joke.  So she said “no,” and laughed it off. She didn’t have to work with this guy directly and he was not in a position of power over her.  On its own, this incident probably would not have been considered severe or pervasive. But, because my friend worked in human resources, she learned a couple months later that several other women in the office had lodged complaints against the same guy.  They did have to work with him regularly and his behavior toward them had become pervasive. To them, it was demeaning, unwanted, derogatory and distracting.  The behavior they complained of was exactly the same — imploring them to let him kiss their feet. My friend’s experience, not itself harassment, ended up serving as corroboration for the other women.

★   Spend too much time worrying about whether you are just “too sensitive” or “can’t take a joke.”

California sexual harassment training materials generally aren’t produced to Hollywood production standards and don’t usually star Academy Award-winning actors.  As a result, the “slice of life” sexual harassment scenarios found in such materials often come across as stilted, ridiculous or funny.

While some depictions of California sexual harassment could evoke some uncomfortable laughs, sexual harassment is far from a laughing matter and can cause serious trauma for its victims.  Of course, this doesn’t stop perpetrators from claiming the offending behavior was “just a joke.” In some cases, it may actually be the perpetrator’s misguided intent to be funny.  However, it is not just the perpetrator’s intent that matters — it is how an objective, reasonable person would react and the impact of that behavior that determines whether or not the behavior constitutes sexual harassment. And even if the offensive behavior ends up being deemed too mild to count legally as sexual harassment, in the final analysis, if it is making you uncomfortable, you have a right to complain about it without fear of retaliation.  

★   Confuse sexual assault and sexual harassment.

In addition to being sexually harassed, if you have been forced to engage in involuntary sexual contact and acts through violence, coercion or incapacitation, this is also something more than sexual harassment. It is sexual assault, and it is a crime under the California Penal Code Section 243.3.

If you have experienced sexual assault or violence, the State of California Department of Justice advises you to

  •      Call 911 (if you are able to do so) if you are being assaulted, or if you witness someone else being sexually assaulted.
  •      Report incidents of sexual assault to local police.
  •      See a health care provider to receive appropriate care.
  •      Consider contacting a crisis hotline.
  •      Seek support from friends, family and community agencies.

You may also wish to consult some of these resources regarding California sexual harassment.