Employers of all sizes and makes are vulnerable to claims brought by their customers or employees. Some of the claims can be for sexual harassment caused by a co-worker or someone at the management level. In California, sexual harassment in the banking sector is a serious offense, even in its mildest forms. While it’s obviously unlawful to request someone for sexual favors in exchange of work privileges or employment, so is touching someone in a sexual way against their will, making inappropriate jokes, or using the office computer to watch pornography. However, not all sexual harassment claims are true and justified.
A trend of extortion has swept throughout California, brought about by customers and even employees who will do anything to exploit high net banking institutions. Sometimes, the false allegations are a form of revenge and other times, the accuser misinterprets the words and actions of the accused. A discontent employee may also try to get back at their employer. Other scenarios are possible but no matter what the sexual harassment case involves, one thing is definite: individuals accused of workplace sexual harassment risk losing their job, wages, and even ruining their reputation. News outlets delight in such cases and only see the sensation that attention-grabbing headlines will bring. Unlike police officers who will stop questioning you once you refer them to your attorney, reporters will continue calling your office until you become angry at the false accusations. Sex tends to sell, and they won’t care whether you are innocent or guilty.
As an employer in the banking industry, it’s paramount to understand that you’ll be held accountable for any sexual harassment ordeal in your institution. This can do more than just disrupt your focus on managing the business; it can also negatively impact your bottom line and ruin your reputation. Banking institutions on the receiving end of a sexual harassment allegation need practical answers and legal representation to help restore calm to business partners and investors. To speak with a Sexual Harassment Attorney, contact us at 800-905-1856 for a free consultation and case evaluation. Should you retain our services, our defense will begin with a thorough investigation and analysis of the complaint. We also help clients in complying with federal and state laws to ensure a safe and respectful workplace and insulate against liability claims.
What is Sexual Harassment by a Banker/ in a Banking Institution?
Sexual harassment is a sex-based form of discrimination that includes physical contact that is sexually motivated, requests for sexual favors, unwelcome sexual advances, or sexually-oriented communication that creates a hostile, offensive, or intimidating environment or allows one to gain power over another individual. This includes verbal remarks, gestures, jokes, looks, posting of sexually graphic images at a workstation, or physical contact. Under California law, such offensive actions do not need to be motivated by sexual desire.
Types of Sexual Harassment Claims
- Quid pro quo
This form of sexual harassment occurs when a manager or supervisor requests for sexual favors from an employee in return of continued employment or for granting job benefits. In the opposite, it could involve issuing threats of demoting or firing an employee if he/she doesn’t act in accordance with sexual demands. In the case of quid pro quo harassment, the accuser must establish that they belong to a protected class, they were subjected to sexual harassment, the harassment was based on sex, and the actions affected tangible aspects of the employee’s terms, conditions, compensation, and privileges of employment. Rejection or acceptance of the harassment must be an implied or expressed condition to the cause of a tangible job detriment or the receipt of a job benefit.
- Hostile Work Environment
This occurs when a coworker or superior makes an employee feel uncomfortable through physical, written, or verbal conduct of a sexual nature. The employee must show that the conduct was sexual in nature and unwelcome and that a reasonable person would consider it sufficiently pervasive or severe to alter the condition of employment and create an offensive, hostile, or intimidating working environment.
It can be hard to distinguish between sexual unwelcome and welcome sexual conduct. The parties involved may enjoy mutual flirting but an escalation of the advances may eventually cause one party’s discomfort. Some comments and behaviors may be misunderstood by the recipient, and a seasoned Sexual Harassment Attorney can help you develop a strong defense in such a case.
Sexual Harassment by Nonemployees
Under the Fair Employment and Housing Act (FEHA) of California, nonemployees can also commit sexual harassment, in which case the employer can be held liable. For instance, if the employee is harassed by a client or customer, an independent contractor providing services to the employer, or a tradesperson doing work at the employer’s location, the employer can be held liable for the unwanted conduct. However, both of the following must be true for an employer to be held liable:
- The employer knew or should have known about sexual harassment in the workplace
- The employer failed to take appropriate and prompt actions to correct the situation
In considering cases of sexual harassment, California courts usually take into account the extent of legal responsibility the employer might have had over the behavior or the employer’s control over the nonemployee. In addition to protecting employees from harassment, Government Code 12940 GC also applies to volunteer, unpaid interns, job applicants and individuals providing services under a contract. Put simply, the FEHA provides potential claims for any harassment that takes place in the workplace.
In addition, an employer is not liable for any off-duty sexual harassment so long as the alleged victim is not able to prove that it was work-related. As such, the employer is not liable if the relationship between the accused and the accuser is not connected to the employment, is completely private and the sexual harassment occurs outside of working hours and outside of the workplace. While California law allows the harasser to be held individually responsible for the claims, there’s no individual liability in discrimination or retaliation cases.
Possible Defenses to Sexual Harassment Charges
As an employer in the banking industry, you pay attention to the details. And when defending against sexual harassment charges, the details are what matter most. The first crucial step to mounting a strong defense is retaining the services of one or more defense attorney. You’ll want to work with an attorney who understands and is experienced in the type of sexual harassment that you are accused of. The legal team can then explore defense strategies once they have heard your side of the story and have understood the claims being made against you. Possible defense strategies in sexual harassment cases include:
- The conduct was not sexual in nature
In a sexual harassment case, the plaintiff must demonstrate that the conduct in question was sexual in nature. This means showing by a preponderance of the evidence that the harassment would not have happened but for a representative of the defendants preferred gender. Courts often presume that sexual harassment cases are inherently gender-based.
- The alleged victim gave consent
In a sexual harassment case, the main issue at play is whether the action(s) was actually unwanted by the plaintiff. Sexual behavior that a person welcomes or consents to is not harassment. For this reason, the defendant cannot be held liable if there’s enough evidence to show that the plaintiff welcomed the conduct or consented to it. In Meritor Savings Bank v. Vinson, the Supreme Court held that for the alleged victim to establish claims of sexual harassment, they must demonstrate that they were subjected to unwelcome advances which were sexual in nature and that the conduct represented a condition of employment which could be attributed to the employer.
Unwelcome conduct is one that the employee or client did not incite or solicit. In making its decision, the court may consider whether the alleged victim complained to the employer and whether the employer the employer took prompt corrective measures after the complaint. Also, the court may wonder why the plaintiff didn’t speak up or disengage from the conduct if the alleged activities were unwanted. In these cases, a skilled defense attorney may be able to argue that the behavior was consensual, whether verbal or non-verbal.
- Mentally incapacitated
Your attorney may argue and prove that you were mentally incapacitated or lacked the ability to assess the situation and you were therefore not able to determine that your conduct was inappropriate. This is known as affirmative defense. It applies in very rare circumstances and can be quite difficult for some reasons. To begin with, it can be complicated to prove insanity, especially if you have no prior mental health conditions. Also, while the prosecuting attorney bears the burden of proof in sexual harassment cases, the burden of proof now shifts to the defense attorney. Therefore, if this is a defense strategy that your team will be considering, you should be prepared for the inherent risk that may affect the professional and personal areas of your life.
This is probably the best strategy, especially if there’s adequate evidence to prove the opposite of what you are being accused of. In a sexual harassment case, you can enter a plea of innocence at the start of the trial.
- Victim motivation
When a sexual harassment case gets to court, there may be other people who will be motivated to also bring a case against you. As such, your defense attorney will probably want to explore the motivation of all parties bringing a case against you, including the plaintiff, the prosecuting attorney, expert witnesses, and character witnesses. For instance, your defense attorney could determine that there was an external motivation in filing the lawsuit. This may include something like revenge for poor management of the plaintiff’s funds, or blackmail for a past transgression.
Affirmative Defense in Sexual Harassment Cases in California
If a manager or supervisor’s sexual harassment causes an adverse action such as suspension, lost wages, or termination, the employer is liable and has no defense. However, the employer has a defense if a bank manager or supervisor creates a hostile environment for an employee but there’s no resultant adverse action such as the employee being fired. This is known as a Faragher/Ellerth defense. The employer in this scenario may prevail if it proves that it reasonably and promptly tried to prevent and/or correct the harassing behavior and that the alleged victim unreasonably failed to take advantage of the corrective or preventive opportunities that the employer offered. In addition, if the situation involves an employee harassing a co-worker, then the employer will be liable if the employer knew or should have known about the sexual harassment ordeal and failed to take prompt corrective measures.
However, after the Ninth Circuit Court of Appeals ruling in Hardage v. CBS Broadcasting, the affirmative defense can apply even if the employer did not investigate the claims of sexual harassment or take actions to correct the situation following the complaint made by the accuser.
A claim of sexual harassment may be just an attack on the employer’s credibility and good character. A seasoned Sexual Harassment Attorney will use their knowledge and resources at their disposal to conduct an investigation into the accuser to include:
- past claims and lawsuits,
- sexual promiscuity and misconduct,
- past criminal history,
- mental health issues,
- drug or alcohol problems,
- dishonesty in welfare and fraud or obtaining government money or benefits, and
- other similar issued that could discredit the plaintiff.
Banking Industry Sexual Harassment Defense Attorney Near Me
A sexual harassment charge is a serious matter and an investigation will typically determine whether you’re guilty or not. If found guilty, you may be required to serve a jail sentence, pay heavy fines, and what’s worse is that you may lose your ability to work in California.
At Sexual Harassment Attorney, we believe you’re entitled to an effective defense and that’s why we work hard to aggressively defend you and your company’s reputation. Our comprehensive knowledge of California and federal employment laws along with decades of experience in defending employers accused of sexual harassment enables us to protect the rights of businesses in the banking industry throughout California. We’ll carefully balance all aspects of your case, including prosecutions, lawsuits, license revocation hearing, and managing your reputation.
We encourage you to call us at 800-905-1856 or fill out our online contact form when you need legal help to protect your rights as an employer. You can arrange a free, confidential consultation with one of our skilled and experienced sexual harassment attorneys to learn how we can help you resolve your issues.