Elected officials and their employees are expected to abide by a complex set of federal and state laws and requirements in their service to the community. Sexual harassment allegations against local agencies and elected officials in California have increased significantly in recent years. Local government employees have also reported that they have suffered sexual harassment from elected officials and their colleagues.
The high expense of sexual harassment claims brought about Assembly Bill 1661, a new sexual harassment training mandate, which was brought into effect on September 29, 2016 by Senators McCarty and Gonzalez. The bill requires that any local agency officials - and their employees - who receive a stipend, salary or any other type of compensation from the local agency, should receive mandatory sexual harassment prevention education and training, including officials of:
- cities and counties
- charter cities
- charter counties
- charter cities and counties
- as well as special districts.
Elected officials include governors, lieutenant governors, House of Representatives employees, attorney generals, state senate, state school superintendents, commissioners and their employees. The law provides recourse for junior staff who may suffer harassment by seniors, coworkers or third-parties. However, Government Code 12940 GC also protects job applicants, volunteers, unpaid interns, and individuals who provide services to elected officials pursuant to an employment contract.
The bill seeks to establish clear rules regarding workplace conduct across all California cities, while taking a stand and setting an example for other employers to follow in order to combat a problem that affects millions of workers. Elected officials are expected to maintain a higher moral standard, which is why they too should receive this training to ensure that their workers enjoy a safe workplace. This training may prevent behaviors that might derail the careers and lives of employees while saving cities from having to spend taxpayer money on sexual harassment settlements.
If you have been sexually harassed by an elected official, you may have grounds to sue for compensation. Speak to a Sexual Harassment Lawyer about the specifics of your case before the statute of limitations expires.
The law only requires that elected officials and legislative bodies receive compensation towards their training, the local agencies have discretion to mandate the sexual harassment training and education for all their employees. A minimum of two hours of sexual harassment training and education is required of California-based local government agencies.
Additionally, training companies that provide sexual harassment education are required to ensure that their proposed content is approved and adequate and includes practical examples that can act as preventative measures against:
- sexual harassment
- sexual discrimination
- and retaliation for taking legal action.
Real life examples can include an employer's inability to end sexual harassment in the workplace, and wrongful dismissal of an employee who blew the whistle on sexual harassment against the elected office.
Assembly Bill 1661 aims to encourage appropriate workplace behavior through creating a harmonious environment by reducing sexual harassment settlement claims. The bill seeks to provide a safe working environment that is free from harassment for all employees.
The bill mandates the training criteria for elected officials as follows:
- Officials should receive sexual harassment training within six months of entering the workforce or taking office.
- Training could be completed online or in person and provided via self-study training and assessments.
- In order to meet the requirements of Assembly Bill 1661, training providers must provide proof of participation.
- Refresher training should be undertaking once every two years.
- Training should consist of a minimum of two hours and include content on the state and federal statutes that outlaw sexual harassment, practical example of sexual harassment, sexual discrimination and retaliation, and the remedies that are available to sexual harassment victims.
The agency must retain training records for a minimum of five years for officials and employees, and also for the company that administered the sexual harassment training.
When it comes to providing a safe work environment for everyone, the status of employees is not a consideration. The law seeks to bring any and all local government employees to justice, regardless of their position. Every employee should be entitled to work in a peaceful workplace where no external factors can hinder performance.
Ethics laws set the minimum standard of conduct, and just because something is legal, does not make it ethical. Additionally, the laws that are applicable to the public also apply to elected officials. These laws were created to enhance the public's confidence and trust in public officials. These laws are enforced by the federal government, usually with the help of the US Attorney's Office typically working closely with the Federal Bureau of Investigation.
When an elected official breaches one of the California state or federal ethics laws, he or she can expect to face a number of administrative, criminal or civil penalties. Punishment will depend on the degree of intent the individual showed in violating the law, and the severity of the violation.
Sexual Harassment by an Elected Official
State or Federal government employees are privy to certain benefits and rights that employees in the private sector don't enjoy. In addition to disability and retirement protections and union protection and benefits, they benefit from safety nets afforded them by federal and state regulations that can prohibit employers' decisions from having a negative impact on their benefits or position. They also have additional protection thanks to:
- leave laws
- whistleblower protection
- and anti-discrimination laws.
What is Sexual Harassment by an Elected Official?
Elected officials can be sued for workplace sexual harassment under California's employment law by victims who are in their employ, as well as civilly by members of the public.
Workplace sexual harassment includes:
- Quid pro quo sexual harassment. This type of harassment involves a person in a higher position requesting sexual favors in exchange for preferential treatment or employment benefits.
- Hostile work environment. If advances or harassment becomes so pervasive or severe that it impacts drastically on the work environment, the victim's career may be threatened.
Government Code 12940 GC of the Fair Employment and Housing Act of California provides the basic legal guideline for sexual harassment in the state. However, the courts have constantly refined the legal definitions of sexual harassment by considering the cases filed by employees against their co-workers or employers.
While the basic legal definitions of quid pro quo and hostile work environment harassment are the basic definitions, the resulting sexual conduct must be unwelcome. FEHA and Government Codes state that employees who welcome comments or advances by coworkers or employers are not victims of sexual harassment. Oftentimes, it can be difficult to prove that the attention is unwanted, since the case will hinge upon the victim's subjective experience, rather than his or her actions.
A valid quid pro quo sexual harassment complaint from an employee would have to involve a supervisor or elected official suggesting that the employee must perform a sexual favor in order to gain some advantage or avoid a negative work situation. In order to meet the requirements for a quid pro quo sexual harassment lawsuit or claim in California under FEHA/12940 GC:
- The employee must have received unwelcome sexual comments, advances or demands;
- The inappropriate sexual behavior must have come from a supervisor (the employee's immediate superior, or someone higher up); and
- If the employee refused to submit to the demands, he or she must demonstrate that the refusal resulted in a tangible employment action, such as dismissal, demotion, or refusal of a promotion.
Quid pro quo lawsuits only apply to cases in which the defendant is superior in workplace seniority to the plaintiff, and for the case to succeed, the supervisor must follow through on the threatened negative employment consequences in order for a case to be valid. Additionally, the plaintiff must be able to show a causal relationship between the negative employment consequence and the refusal of sexual favors.
If the employee or supervisor threatens punishment for refusal of sexual advances, but fails to follow through, the case will hinge upon a hostile work environment claim.
A hostile work environment sexual harassment claim may be established if:
- the employee receives unwelcome comments, advances or conduct;
- the harassment is sexually based;
- the harassment is pervasive or severe enough to create a hostile work environment or alter employment conditions.
The last condition is the most important element of a FEHA sexual harassment claim based the hostile work environment theory. However, it can be either pervasive or severe and does not have to be both. Isolated, occasional, trivial or sporadic behavior will not qualify as a hostile work environment. Also, sexual harassment conduct does not have to be based on sexual activity or desire. It can be verbal, and include hostile, but non-sexual behaviors or remarks aimed at a person or people of the opposite sex.
Sexual favoritism is another form of hostile work environment. When an employee welcomes sexual advances from a supervisor, a quid pro quo harassment claim will not be supported. However, if the employer or supervisor engages in a sexual relationship with a certain employee who receives favorable treatment as a result, other employees may have a valid claim under California's hostile work environment sexual harassment law.
Battle of the Sexes: Sexual Harassment by Elected Officials
Over the years, it has become a myth that only male elected officials can harass female employees. However, women may also make sexual advances toward men. Someone may even be sexually harassed by a person of the same sex.
Government Code 12940(j) of the California Fair Employment and Housing Act states that sexual harassment does not necessarily have to involve a supervisor or employer but can also be committed by coworkers and - in some cases - third parties that are not employed by the elected official. Third parties could include independent contractors or tradespeople who provide services to the elected official, but in order for the elected official to be found liable, he or she must:
- know or should have been aware of the harassment;
- fail to take appropriate and immediate corrective action.
The California courts will consider the elected official's control over the third party as well as other legal responsibilities he or she might have had for the inappropriate behavior.
Only a person in a decision-making position can commit quid pro quo harassment, since it involves threats for declining advances or promises of positive employment decisions for submitting to sexual favors.
Hostile work environment harassment is usually perpetuated by coworkers or fellow employees. This does make a difference in terms of damages.
Whether or not an employer is found deficient or negligent in a sexual harassment suit involving a supervisor, the employer will be liable for damages.
The employer will only be liable for damages caused by harassment from a coworker if the employer is found negligent. Negligence implies that the employer was (or should have been) aware of the harassment and failed to take the appropriate action. The employee may sue the harasser(s) individually if the employer was not negligent.
While the Fair Employment and Housing Act (FEHA) provides recourse for workplace harassment claims against employers, coworkers, and third parties, California Civil Code 51.9 enables individuals who are sexual harassment victims to sue the professionals who committed the crimes against them. This law uses the same definitions of sexual harassment as FEHA but applies to difficult-to-terminate professional relationships.
Legal Advice on Sexual Harassment by an Elected Official
If you have fallen victim to sexual harassment by an elected official, or if you need assistance with the definition of sexual harassment under the California Fair Employment and Housing Act, call a Sexual Harassment Attorney now at 800-905-1856. One of our skilled and experienced sexual harassment attorneys will confidentially discuss the merits of your case with you and help mount a strong case that protects your rights in the workplace. Our offices service locations throughout the entire state of California, including San Diego, San Francisco, Los Angeles, Orange County and surrounds.