Sexual harassment is one of the most persistent types of workplace harassment that occurs in this day and age. Being victimized by this kind of harassment can create a situation where the employee feels unsafe and unable to do their job. There has been a recent sea change in how state legislatures and jurisdictions deal with sexual harassment, particularly in an “employee friendly” state like California. Popular awareness of the issue and a greater emphasis on victims’ rights and social justice has created an environment whereby lawmakers emphasize the importance of creating and fostering harassment-free workplaces.
Due to the preponderance of various laws and statutes, it is advisable that a victim seek out legal representation immediately. This will allow them to mount the most effective legal offense and to increase their chances of getting a substantial financial settlement from the offending party (whether that is the individual aggressor, the company, or both). Sexual Harassment Attorney specializes in these types of cases and we represent victims from not only the Imperial County area but the entire state of California as well.
Sexual Harassment Statutes
Residents of Imperial County, California are subject to both federal and state laws. The federal law that can be used as the basis for a sexual harassment lawsuit is the Civil Rights Act, Title VII. This law was passed by Congress in 1964 and represented a watershed moment in enacting protections for employees who might be vulnerable to abuse by the powers that be. Title VII states that gender (sex), race, ethnicity, or religion may not form the basis of any discriminatory action; to do so is explicitly illegal under federal law. This is applicable to employers who have 15 or more employees, including government agencies. Please note, however, that the law has no explicit language addressing sexual harassment; it only states that it is illegal to discriminate because of gender (sex).
Luckily, California maintains some of the most comprehensive statutes in regards to sexual harassment. They all fall under a state law passed in 1959 known as the Fair Employment and Housing Act (alternately referred to as FEHA). This law is administered by a regulatory agency known as the Department of Fair Employment and Housing which can investigate allegations as well as pursue lawsuits on behalf of victims.
Though FEHA is concerned with various forms of discrimination, it does have specific provisions that address instances of sexual harassment. Though most cases of sexual harassment occur in the workplace or are workplace-adjacent, it may, in fact, occur anywhere.
FEHA also protects victims in other situations, including instances where a landlord or building superintendent is harassing a resident of the building in question. This is because FEHA protects potential victims from harassment in both employment and housing, meaning that an applicant for a living arrangement cannot be denied on the basis of gender, sex, ethnicity, nationality, sexual orientation, and so forth. California law very clearly makes it illegal to harass or discriminate anyone on the basis of gender or sex.
The Difference between Sex Discrimination and Sexual Harassment
In this legal context, discrimination and harassment are two separate concepts, though they are inextricably linked with one another. In some cases, the victim may have suffered from both discrimination and harassment.
It is useful to consider sexual harassment as a specific kind of sex discrimination. Sex discrimination occurs when a victim has been discriminated against because of their gender or sex. This discrimination may take the form of being paid lower wages, demoted, or even terminated. Essentially, it means that a victim is being treated unfairly or harassed due to their gender or sex.
For example, under the Pregnancy Discrimination Act, it is illegal to exhibit discriminatory behavior against a female employee who is pregnant. This behavior includes terminating, demoting, or instituting a pay cut of any pregnant employee. Any female employee who is pregnant has certain expanded protections under a federal law known as the Americans with Disabilities Act (ADA) of 1993. These protections include not only the pregnancy itself but any condition or health issue stemming from the underlying pregnancy.
Sexual harassment is the act of subjecting an employee to unwanted and unsolicited behavior designed to harass, sexually pursue, humiliate, degrade, or otherwise abuse a victimized employee. It is not explicitly delineated in the Civil Rights Act, but it is in the FEHA state law. It is important to remember that both of these laws apply to any and all residents of both Imperial County specifically and California in general.
This harassment can take various forms, but most commonly consists of:
- Making sexual “jokes” or explicit comments.
- Distributing material, written or otherwise, that contains these jokes and/or comments, including sexually explicit or inappropriate images.
- Propositions or threats to endure said behavior in order to exchange it for work-related favors, including repeatedly requesting that sexual favors be fulfilled.
- Making bodily contact that is unwelcome or unsolicited; in certain cases, this may actually cross over into a criminal act and would be considered sexual assault.
- Favoring an employee on the basis of their gender or sex.
- Making sexual comments about an employee to another employee; in other words, the inappropriate behavior can be directed at a person who is not actually present for said offenses.
It is crucial to note that any of these behaviors would be considered sexual harassment even if they are perpetrated outside the place of employment. For example, if the aggressor sends written missives in the form of email and/or texts, or makes posts on social media sites, then they could be held liable for sexual harassment under FEHA.
Furthermore, due to a 2013 California state law known as SB 292, this harassment behavior does not necessarily have to be motivated by a wish to fulfill sexual desires; it can be motivated by simple hostility or cruelty. A common misconception is that sexual harassment is exclusively about sexual advances, but SB 292 has specified that it may also consist of using sexual behavior as a way to abuse power.
This inappropriate behavior can sometimes be exclusively about subjugating or abusing an underling without any sexual desire being a motivating factor. There clearly exists a spectrum of what constitutes “inappropriate behavior”. However, California law generally considers something to be inappropriate if any “reasonable person” of sound mind would consider that some action or behavior creates a hostile or harassing work environment.
The Two Primary Types of Sexual Harassment
If an employer is exhibiting the type of behavior described above, it is generally considered to be sexual harassment. There are two primary types of sexual harassment:
- Sexual harassment that results in a hostile work environment. This is a pattern of misconduct that has continued despite multiple attempts by the employee to stop it. Sexual harassment may occur from a single incident, but in order to claim that the employee suffers from a hostile work environment, then it must be an ongoing behavior.
- Sexual harassment that is quid pro quo. This is when an employer or supervisor leverages their power over the victim to extract sexual favors. In other words, the aggressor may make threats or offers of promotion, raise, or some kind of company perk in exchange for sexual contact.
These forms of harassment can be both explicit, whereby the aggressor openly and unambiguously made sexual overtures, or implicit, whereby the aggressor implied the harassment. Implicit behavior is more difficult to prove, but if there is any written record of such behavior (such as emails and/or texts) it is absolutely imperative that the victim keep them to then use in the investigation or lawsuit.
Sexual harassment does not always have to consist of the employer taking action against an employee; it may also be as the result of an employer not taking action. This means that if the employer was made aware of the harassment and did not try to correct it, both the harassing employee and the company that employs them may be held liable.
Other Provisions of California Sexual Harassment Laws
California law clearly states that sexual harassment lawsuits may result in damages having to be paid by both the individual who committed the harassment and the company. This is because the company in question has a legal obligation to investigate and stop any sexual harassment that may be occurring within it. Depending on the case, your attorney may pursue two separate, but related, arguments: that the individual aggressor is liable for their behavior and the company that employed them is liable for allowing said behavior.
Sexual harassment does not always occur in the workplace between two employees of the same company. A person who is not an employee may file a lawsuit against an employee of the company in question. This means that freelance workers (also known as independent contractors) are afforded certain protections under harassment laws and that a company has the legal obligation to prevent harassment occurring to non-employees as well.
In companies with over 50 employees, sexual harassment training, education, and workshops are mandatory and must be provided by the company in question. The company must also have a human relations (HR) department that keeps comprehensive records of harassment allegations, including the results of investigations and any corrective measure is taken. This is to ensure that a toxic workplace culture does not develop. A workplace culture consists of the overall environment and conditions that employees work under and California law specifies that companies have a legal obligation to not create and/or allow a harassing workplace culture. This also referred to as a code of civility in certain legal circles.
Because of a recent focus on sexual misconduct in the wider culture, the California legislature has devoted considerable resources to expanding and strengthening FEHA. There is a strong possibility that these various provisions will be expanded from companies with 50 or more employees to companies with 5 or more employees. This will expand the code of civility as well as drastically increase the reach of the law and protect a larger percentage of the working population.
How to File a Sexual Harassment Complaint or Lawsuit in Imperial County
Any worker who has been victimized by harassing behavior or is caught in a toxic work environment has the absolute legal right to seek recourse, including any and all residents of Imperial County or California. The victim may decide to file a federal complaint with the Equal Employment Opportunity Commission (the EEOC) within 300 days of the incident in question. However, the protections afforded under Title VII are considerably less than those in California state law.
If the victim wishes to file a state complaint under FEHA, they must do so with the California Department of Fair Employment and Housing (DFEH). Residents of Imperial County can find their regional DFEH office in San Diego at 1350 Front Street, Suite 3005.
The victim must file a said complaint within one year of the harassment. This may be problematic as many victims wait a long time before complaining because of fear of retaliation. In these cases, it is in the victim’s best interest to retain a law firm like Sexual Harassment Attorney to do the difficult legwork on their behalf. This will minimize the traumatic interactions that may occur while pursuing the case.
Once this complaint is lodged, then the DFEH has 60 days to act on it and initiate an investigation. This investigation will be comprehensive and will include interviews with both the victim and the aggressor. It may also involve, if applicable, the HR department and any relevant documentation that they are legally obligated to keep.
Depending on the outcome of the investigation, mediation will occur and the victim and offending party will try to reach a settlement. If no settlement can be reached (meaning that the company and/or individual did not offer a substantial enough sum of money as damages), then it will go to a civil court and be decided by a judge.
Contacting an Imperial County Sexual Harassment Attorney Near Me
At every step in the process, whether it is filing a complaint or going to court, it is imperative that you retain a skilled legal team. For years people have suffered silently from sexual harassment and told themselves that no one will believe them. That is not the case anymore; we at Sexual Harassment Attorney believe you! Let our legal team go to bat for you and guide you through this intimidating and overwhelming process. We serve clients all over Imperial County and the entirety of California. Call us at 800-905-1856 right away and tell us your story.