Holding Long Beach Employers Accountable for Illegal Harassment in the Workplace
Never before has sexual harassment been targeted as much as it is currently across the workplaces of America. Activists from all industries are standing up, speaking out, and holding both harassers and employers accountable for illegal conduct in the workplace. Accountability is the most important step toward stopping sexual harassment in the workplace. Without financial and legal consequences for these acts, harassers will continue to hurt their victims, and employers will continue to allow such activity in their work spaces. The experienced Long Beach sexual harassment attorneys at Winer, Burritt & Scott, LLP, help victims access legal remedies for sexual harassment.
What Is Sexual Harassment?
Sexual harassment falls into two broad categories. The first is known as a hostile work environment, which is created by prohibited sexual behavior. According to the California Department of Fair Employment and Housing, this can consist of unwanted sexual advances, or visual, verbal, or physical conduct of a sexual nature. It can also include gender-based harassment of a person of the same sex as the harasser.
These definitions encompass a broad range of behaviors that California case law has explored in detail. Sexual harassment can include visual conduct, such as:
- Making sexual gestures
- Displaying sexually suggestive objects or pictures, cartoons, or posters
It can also consist of verbal conduct, such as making or using:
- Derogatory comments
- Verbal abuse of a sexual nature
- Graphic verbal commentaries about an individual’s body
- Sexually degrading words to describe a person
Physical conduct such as touching, assault, or impeding or blocking movements can also create a hostile work environment.
The second broad category of sexual harassment is quid pro quo. This Latin phrase (meaning “this for that”) refers to circumstances in which a victim is offered preferential treatment in exchange for sexual favors, or is threatened with retaliatory action for declining sexual advances.
The classic example of quid pro quo sexual harassment is offering a job or promotion if the victim will perform sexual favors. It can, of course, come across as subtler than this. The victim may receive a preference in shift schedules or time off. The victim may receive longer lunch breaks, or other small—but tangible—benefits. Even where the benefit is minor, an experienced sexual harassment attorney can find quid pro quo. The same is true for requested sexual favors. Inappropriate comments, uncomfortable looks, and other seemingly small actions can still rise to the level of a quid pro quo exchange.
Some cases make sexual conduct difficult to classify as quid pro quo or a hostile work environment. The U.S. Supreme Court examined this issue in Burlington Industries, Inc. v. Ellerth (524 U.S. 742)(1998). In that case, an employee had received several unwanted sexual advances from a male supervisor. Despite his obscure references to her work life “being easier” if she would wear shorter skirts, and saying that he could make her life “harder or easier” at the company, the employee was never denied promotions or other preferential treatment by the supervisor. She ultimately quit the job in a letter, citing the supervisor’s conduct, and eventually sued the employer for sexual harassment.
The trial court dismissed her case. Because the employee had suffered no actual job detriment, the court believed she could not prove that quid pro quo had occurred. She appealed this decision to the Seventh Circuit Court of Appeals. The appellate court was so divided that the case produced eight separate opinions and no consensus for guiding law on the issue.
As a result, the U.S. Supreme Court heard the case. It ultimately concluded that the employee could potentially prove that she was subjected to a hostile work environment even if her supervisor never carried out the quid pro quo threats.
The Difficulty in Proving a Sexual Harassment Claim
Sexual harassment claims are often difficult to prove. In many cases, it is the victim’s word against the harasser’s. In such a case, the harasser will often attempt to minimize the impact of what he or she said or did. Altering the tone or subtext, or changing the context in which a comment was made, can make sexual harassment much more difficult to prove. In such cases, written communications (such as text messages or emails) can form powerful evidence in proving exactly what a harasser said to a victim.
Most sexual harassment claims are brought against employers as well as an individual who commits the harassment. In California, if the perpetrator of the sexual harassment is a supervisor or officer, the company is strictly liable for the perpetrator’s conduct, even if the company wasn’t aware of the sexual harassment until the victim complained. In the case of sexual harassment committed by a non-supervisor coworker, then, even under California law, plaintiff has to prove that the company knew or should have known about the harassment or the potential for harassment based on the coworker’s past harassment or other signs that the coworker was a potential danger to fellow employees.
How an Attorney Can Help Victims Prove a Sexual Harassment Claim
A sexual harassment case requires the strategic presentation of strong evidence. It also requires the ability to successfully rebut defenses raised by the perpetrator or employer’s attorney. An experienced sexual harassment attorney will have the skills necessary to meet these challenges and successfully bring a sexual harassment claim. California case law provides many examples of such situations in which attorneys were required to overcome defenses (either procedural or substantive evidentiary challenges) to sustain a client’s sexual harassment claim.
In 2008, the Fifth District Court of Appeal of California explored one such procedural challenge in Bradley v. California Department of Corrections and Rehabilitation (158 Cal.App.4th 1612). Dr. Bradley was a clinical social worker who worked at the Corcoran State Prison. She was not a state employee, but a contract worker who was paid a contracted rate for the hours of counseling services she provided at the prison.
During this contract she began receiving unwanted sexual advances from the prison chaplain. She repeatedly declined his advances and even reported several off-campus incidents to the police. She also reported the conduct in the workplace to a Department of Corrections employee who supervised her contracted work. Eventually, her contract was terminated.
Dr. Bradley then filed a sexual harassment and wrongful termination lawsuit against the Department. At trial, the jury found in her favor on these issues. On appeal, however, the trial court agreed with the Department’s argument that she was not an employee, and therefore had no legal standing to assert a claim for retaliation. Dr. Bradley’s attorneys challenged this claim to the California Court of Appeal. The appellate court agreed that state legislature’s intent in enacting the Fair Employment and Housing Act (which prohibits sexual harassment in the workplace) was to expand its protections to the greatest number of people possible—including contract workers. Dr. Bradley’s jury verdict was therefore reinstated.
Similarly, attorneys were able to present persuasive evidence of a state employer’s non-response to sexual orientation discrimination against a gay employee, which was strong enough to both win a jury verdict in the employee’s favor and protect that verdict from appellate challenges. In Hope v. California Youth Authority (134 Cal. App. 4th 577)(2005), the plaintiff’s attorneys proved that (1) the employee, Mr. Hope, was subject to gay slurs and other gender discrimination in the workplace, (2) that he complained to a series of six supervisors to no avail, and (3) that he was retaliated against as a result of these reports.
The gender discrimination was not limited to the use of gay slurs. The plaintiff, who was employed in the kitchen of a juvenile detention facility, was also be given extra work. While other kitchen employees were allowed the help of the juvenile detainees, Mr. Hope had to perform his work unassisted. His supervisor would even dump trash in Mr. Hope’s work area after he cleaned it to create more work. More disturbingly, the supervisor would tear up behavior reports filed by Hope in front of the detainees. These reports acted as deterrents to dangerous behavior by the juveniles. By ripping them up in front of the wards, the supervisor was effectively compromising Mr. Hope’s safety in the workplace, as the juveniles were now free to harass him as well without consequence.
On appeal, the employer argued that there was not sufficient evidence to support many different aspects of the jury’s verdicts and the trial court’s rulings. The appellate court dismissed every appeal, and found sufficient evidence to prove: (1) that Mr. Hope was denied a promotion, (2) that any denial of the promotion was because of his sexual orientation, (3) that the California Youth Authority could have reasonably employed the plaintiff until his retirement age, (4) that the Youth Authority hadn’t met its burden to prove the availability of alternate employment to the plaintiff, (5) that the award of punitive damages to punish the employer was not so great as to shock the conscience. This caused the employer to lose every argument it had raised on appeal. It also meant that the evidence presented by the plaintiff’s attorneys was strong enough to secure a jury verdict at trial and withstand judicial review on appeal.
Every case presents a unique set of facts that an attorney must strategically apply to existing sexual harassment law to make effective legal arguments. An attorney must possess skills in all of these areas to make arguments that will give a claim the best possible chances of success at trial. An attorney must also present sufficiently strong arguments to withstand challenges made on appeal. To accomplish all of these tasks effectively, an attorney must have experience in litigating actual sexual harassment cases. Only through years of practice can an attorney develop the skills in research, writing, litigation, and appellate review that will protect a client’s legal interests throughout a sexual harassment case.
A skillful attorney can even prevail in a non-witnessed he said/she said case, if the plaintiff is credible. Most sexual harassment is unwitnessed. Companies frequently rely on lack of witnesses to let the harasser off the hook if there is an internal complaint. In a he said/she said situation, it is even more important to hire an attorney who specializes in sexual harassment cases, because that attorney is likely to know how to present a case increasing the credibility of their client and harming or hopefully destroying the credibility of the perpetrator.
Experienced Representation for Long Beach Sexual Harassment Claims
Now, more than ever, the victims of sexual harassment are telling their stories and insisting on serving justice to their harassers. These victims need the advice of a skilled employment law attorney who knows how best to present sexual harassment claims. Call (323) 417-5909 today to schedule your free consultation with an experienced sexual harassment attorney at Winer, Burritt & Scott, LLP.
We work with victims as partners to present the strongest possible case in support of sexual harassment claims. We explore all options for civil litigation, settlement negotiations, arbitration or mediation, media coverage, and other avenues by which victims of sexual harassment can seek justice. This allows us to help victims hold employers responsible for providing safe work spaces that are free of sexual harassment.
**We do not represent perpetrators of sexual harassment or those who are accused of sexually harassing behavior.