Recently, sexual harassment has become increasingly more prevalent in workplaces, including in law practices. In 2016, California saw a whopping 554 administrative complaints of employment related sexual harassment alone. Lawyers, coworkers, supervisors, junior personnel and clients alike are connected via social media platforms, and it is easier than ever to quickly send a message or make a call. While this is incredibly convenient, it also blurs the professional boundaries, which makes it easy for predators to swoop in on potential victims.
Lawyer Sexual Harassment Context
Sexual harassment is prohibited under state and federal law in California, according to the Fair Employment and Housing Act (FEHA). FEHA is a state law that protects job applicants, unpaid interns, employees and - in some instances - independent contractors from various types of discrimination, including sex-based discrimination.
Civil Rights Act Title VII of 1964 makes it unlawful for anyone to discriminate against someone on the basis of their gender. This federal law and while it is not explicit in terms of making harassment illegal, the courts do consider sexual discrimination to include sexual harassment.
Employees typically enjoy greater protection from FEHA than they do under Title VII, which is why employees typically use FEHA to seek relief.
California's Constitution prohibits sex-based employment discrimination among various other factors, but fewer people seek relief using this law than FEHA and Title VII.
Sexual harassment by a lawyer can take two broad categories, both of which do not exist in statutes, namely:
- quid pro quo sexual harassment
- hostile work environment sexual harassment
A superior who provides an employment term on the condition of an employee's willingness to submit to unwelcome sexual contact, may be guilty of quid pro quo sexual harassment. Most often, the harassment is framed as an offer or a threat. The supervisor or employer will offer a job promotion in exchange of sexual favors or threaten some form of job-related punishment if the employee refuses to agree to the employer's sexual demands. These offers or threats could be implied or express, which means that simple discussion of sexual behavior or acts that could potentially result in sexual acts could suggest a threat or offer.
Sexual harassment cases typically involve:
- unwarranted graphic discussions of a sexual nature
- comments on an employee's body and its potential sexual uses
- sexual propositions
- unwelcome touching
- repeated unwelcome requests for dates
- unwelcome sexual comments, including derogatory comments
- employment decisions based on the condition of sex
- display or distribution of sexually graphic images
- unwanted comments, jokes or gestures
A sexual harassment lawsuit against a lawyer can be supported by a single incident of quid pro quo harassment.
When sexual harassment becomes repeated and serious, it can result in a hostile work environment. A work environment that becomes oppressive, offensive and intimidating due to pervasive comments and actions of a sexual nature is known as hostile work environment sexual harassment.
Most often, multiple instances of sexual misconduct are required for it to become pervasive and to create hostile working conditions. The victim and his or her lawyer must provide evidence to demonstrate a routine or repetitive pattern of harassment.
Each case will show a different degree of hostility, which is why the court analyzes it from a "reasonable person" perspective. Some of the factors that will be considered in determining the level of pervasiveness of the harassment will include:
- Nature of conduct - The courts will consider how offensive the behavior was, considering that unwelcome physical contact is more offensive than written or verbal abuse. Highly offensive conduct is considered more serious than mild, pervasive conduct.
- Context - The California courts will consider the context in which the sexual harassment occurred and consider any mitigating circumstances that alter the offensiveness or pervasiveness of the conduct.
- Frequency - More frequent occurrences of sexual harassment will increase the likelihood of the sexual harassment being consider pervasive.
Lawyer Sexual Harassment: Where to draw the line
There's a fine line between innocent banter and sexual harassment and every individual has a different level of tolerance for physical contact. Some people are huggers while others prefer to maintain their personal space. It's usually best to avoid any behavior that makes you feel concerned about whether the conduct is crossing the line. It typically includes avoiding innuendo, sexual jokes or offers - even those made in good humor.
However, these factors do not necessarily meet the criteria for unlawful lawyer sexual harassment. A statement with offensive sexual undertones may not constitute unlawful, as the courts follow a fact-specific approach which considers specific behaviors as harassment, namely:
- sexual advances
- verbal harassment
- physical harassment
- and visual harassment.
The most common and clearest type of sexual harassment is unwanted physical contact. A lawyer may not touch or otherwise physically interfere with a client, employee or coworker if the touching has a sexual connotation or if it is based on sexual attraction.
Things become murky when a certain form of touching is misconstrued. For instance, a lawyer can touch a coworker or client's shoulder in a non-sexual way by squeezing his or her shoulder in encouragement, or in a sexual way when massaging it. Sometimes, determining whether a certain form of touch is appropriate or not can be confusing. Ultimately, it boils down to three questions:
- Is the touching unwanted?
- Is the touching severe?
- Is the touching pervasive?
When unwanted touching is pervasive enough to make the workplace hostile, it becomes problematic.
Some types of touching that would almost always be considered unlawful sexual harassment, include:
- rubbing thighs
- touching buttocks or genitals
- touching a female's breasts
The California Court of Appeal, the court found that although a supervisor who rubbed an arm against an employee's breast on two separate occasions, it did not meet the criteria for pervasive sexual harassment. The best thing to do is to keep a log of all the incidents of harassment committed against you. Be sure to note the dates on which the inappropriate acts occurred and the names of potential witnesses as well as any other evidence that might help your case.
Likewise, in cases of sexually-charged horseplay, sporadic or isolated incidents did not meet the standards of severity for sexual harassment, despite the fact that courts acknowledged the impropriety of the behavior. Perhaps bringing the lawsuits under battery or assault would have resulted in a different outcome.
Sexual harassment that occurs outside of working hours and away from the business premises can still be considered unlawful if it is work-related.
Recourse for Victims of Lawyer Sexual Harassment
A victim of sexual harassment committed by a lawyer may feel exposed, vulnerable and hopeless. After all, we rely on lawyers to be respected leaders of the community, beacons of honesty and integrity. The last thing one would ever expect is for a lawyer to abuse a client or employee for their own selfish pleasure. However, victims are encouraged to try remember that in every industry, there are good and bad people. And people are flawed.
California law states that both businesses and individuals can be held liable for unlawful sexual harassment. That means that both your coworkers, supervisors and the law practice can be held legally responsible for the sexual harassment and can be liable for compensation.
Under Fair Employment and Housing Act, individual liability is unique. For a person to be sued under FEHA, one must be an employer or a business which regularly employs five people or more. However, in the case of sexual harassment, this liability is extended to 'any other person' who harasses a job applicant or employee. The definition of employer is further extended to businesses or persons who employ one or more people as regular employees.
As such, employers, supervisors and coworkers can all be considered liable for their individual roles in aiding and abetting sexual harassment incidents. If an employer is aware - or should reasonably be expected to have been aware - of the sexual misconduct, he or she may also be held liable, because they are responsible for implementing the required measures to prevent or put an end to sexual harassment.
Employers are responsible for providing a work environment which is harassment and discrimination free. If a legal practice is aware of sexual harassment conduct and fails to put an end to it by displaying and distributing educational materials available from the Department of Fair Employment and Housing. Firms that employ fifty or more employees must provide two hours worth of sexual harassment training for employees in supervisory roles every two years. A new supervisor must undertake sexual harassment training within the first six months of being appointed.
Sexual harassment is not always about sexual greed. It is often a matter of power. A perpetrator may want to make his or her victims feel powerless. Manipulating an employee into having sex with him in exchange for work-related favoritism or advantages, or to avoid some form of negative consequences can make someone feel as though they have more power. However, you are more than a victim. You are a survivor and you have many rights afforded to you by state and federal law. You can take your power back with the expert assistance of an experienced sexual harassment attorney.
Being victimized by a lawyer may be completely overwhelming and you may have difficulty placing your trust in another attorney. However, you are entitled to justice and compensation. Sexual harassment victims by lawyers may seek the following damages under the Fair Employment and Housing Act:
- Injunctive relieve - A court order which prohibits the firm from taking negative employment actions in retaliation.
- Punitive damages - In cases that involve malicious or oppressive conduct, one might file for punitive damages to punish the guilty party.
- Compensatory damages - Sexual harassment can be traumatic and lead to a loss of income, medical damages, past and future benefits, front and back pay and even the victim's job. Compensatory damages pay for actual economic harms the victim suffered because of lawyer sexual harassment.
- Legal fees - In cases where lawyers fight cases on a contingency basis, the Fair Employment and Housing Act will often award reasonable legal fees which will include attorney's costs, court fees, expert witness expenses and litigation costs.
In many cases, the court does not require that the victim proves that he or she suffered damage as the result of sexual harassment. Once off, mildly unlawful conduct alone is often enough to prove liability.
Filing a lawsuit under Fair Employment and Housing Act (FEHA), unlike Title VII, is often the best choice, as there is no statutory maximum imposed on compensatory punitive damages. Also, the Act prohibits employers from retaliating against you for complaining about or opposing sexual harassment or any other act which FEHA forbids. Any employer that retaliates in this respect may be found guilty of unlawful employment retaliation.
Help! My Lawyer Harassed Me!
If your lawyer or employer in the legal field harassed you, be sure to document it and to report it to a supervisor or to the firm's human resources department. Bringing it to the attention of your employer is usually the most efficient way to bring an immediate end to it.
Follow the guidelines in your employee handbook, and if there is no relieve, consider finding a Sexual Harassment Attorney you trust to help you bring a civil or criminal lawsuit. You may not yet be convinced that you want to bring a lawsuit, but you should know your rights before you inadvertently waive them.
Beware that the law imposes certain time limits to lawsuits, so you should make a decision as to whether or not you wish to file sooner rather than later. By calling 800-905-1856, your Sexual Harassment Attorney can provide the guidance you need. Schedule an appointment during which a trusted sexual harassment attorney can review your case today. Your attorney will inform you about your rights. If you decide to move forward with the lawsuit, you can rest assured that we will aggressively pursue your right to a work environment that is free from sexual harassment and the maximum compensation due to you.