Representing the Rights of Sexual Harassment Victims in Los Angeles
These stories and many others like them illustrate the degree to which sexual harassment pervades the workplace. But it doesn’t take behavior as egregious as that of which Weinstein is accused for an individual to have engaged in impermissible sexual harassment. Far more subtle behavior involving no physical contact, or explicit demands for sex in exchange for job security or advancement, also can constitute sexual harassment—and if anything, these instances are far more prevalent than the outward and explicit sexual harassment alleged against Weinstein.
Fortunately, state and federal law both provide protections and remedies against such harassment. If you find yourself subjected to such harassment, whether you are male or female, you have rights, and the law protects those rights. But you don’t really protect your rights if you do nothing. You need to avail yourself of the protections the law provides. If you believe you are subject to sexual harassment, you need to take affirmative steps to put a stop to it—and receive compensation for any lost wages, other economic losses, emotional distress, attorney fees, interest on any damages awarded, and potentially for punitive damages.
At Winer, Burritt & Scott, LLP, we will take the time to understand what happened to you at work and let you know whether we believe you can file a claim—all at no cost to you. To schedule a free consultation with one of our Los Angeles sexual harassment lawyers, call our office today at (510) 433-1000 or send us an email through our online contact form.
What Is Sexual Harassment?
State regulations governing sexual harassment define it as unwanted sexual behavior, including sexually motivated or oriented visual, verbal, or physical conduct. This includes a wide array of potential conduct, including harassment because of gender even when the victim is the same gender as the harasser. Prohibited behavior under state law includes:
- Visual conduct, including staring or leering; sexual gestures; displaying sexually suggestive objects, such as pictures, cartoons or posters
- Verbal conduct, such as derogatory comments, cursing, sexual slurs or innuendoes, off-color jokes, or any other verbal abuse of a sexual nature
- Physical conduct, such as any unwanted or uninvited touching, assault, or seeking to impede or block movements, as in an effort to contain a person in a place they wish to leave
- Offering employment benefits in exchange for sexual favors
- Making or threatening retaliatory action after the victim rejects sexual advances.
Federal and California law both recognize two easily distinguished primary forms of sexual harassment. The first and most egregious might one day become known as Weinstein harassment, depending upon how the allegations against Mr. Weinstein play out. In short, this first and most direct form of harassment involves a scenario where you are, implicitly or explicitly, given a choice by a superior, or even your ultimate boss, of having sex with that person or giving up your job or any chance for advancement.
This is commonly referred to as “quid pro quo” harassment (or “this for that” in Latin). In practice, it means you will trade one thing for another—in the case of sexual harassment, you trade sex for your job, a promotion, or a raise. The person need not make an explicit proposal—if the person demanding sex is powerful enough in your workplace or industry, the person asking for sex isn’t really asking. Your choice is to comply or lose your job or, at a bare minimum, give up on any chance of advancement in your career.
Quid pro quo sexual harassment is less common. Unfortunately, many such cases are “he said, she said,” and victims do not report them for fear that nobody will believe them. However, when documentary evidence—emails, texts, phone records, and the like—or other evidence backs up the allegations, the employer can incur severe consequences. California law holds employers strictly liable when managers use their authority in the workplace to harass or intimidate employees into providing sexual favors in exchange for advancement or continued employment.
Strict liability means that the employer is liable if the complainant prevails, with no special defenses available to the employer to mitigate or avoid liability. The plaintiff can recover compensation for any lost wages, other economic losses, emotional distress, attorney fees, interest on any damages awarded, and potentially for punitive damages. A plaintiff can qualify for punitive damages if the company’s officers, directors, or other managing agents knew about the harassment but did nothing to stop it.
The second kind of sexual harassment is known as a hostile work environment, often referred to as HWE. This occurs when sufficiently severe or pervasive harassment creates a hostile work environment for the harassed employee. A pervasive pattern of harassment could consist of many little things—suggestive remarks, off-color jokes, intimidation, unwanted touching, and the like—that individually might not rise to the level of a hostile work environment. Cumulatively, however, they create one. By the same token, a severe, single act of harassment could create a hostile work environment. In both instances, whether the behavior is sufficiently pervasive or severe as to constitute a hostile work environment is a question of fact that a regulatory hearing or trial would answer.
Supervisors need not direct harassing behavior at the complaining employee to create a hostile work environment. Supervisors or coworkers can create a hostile work environment by making openly lewd comments, off-color jokes, and inappropriate remarks within earshot of but not directed at the complaining employee. Likewise, supervisors or coworkers need not make a woman the object of sexual propositions or inappropriate touching for those actions to constitute a hostile work environment if she witnesses that sort of behavior directed at other female employees.
Courts may find employers strictly liable for a hostile work environment as well but under specific conditions. Under California law, if a supervisor harasses an employee, the employer may face strict liability for damages. If the harassment creating a hostile work environment comes from another employee but not a supervisor, then the employer is liable for damages only if a supervisor knew or reasonably should have known about the harassment and didn’t immediately take appropriate measures to halt the harassment.
Under federal law, even if a supervisor harasses an employee, the employer is not liable if
- The employer did not take “employer actions” against the person reporting harassment, such as termination or demotion, and
- The employer can prove that it exercised reasonable care to prevent harassment and took prompt action to halt the harassment when the employer learned about the harassment
- The employer can prove that the harassed employee was unreasonable in failing to avail herself (or himself) of preventive or corrective measures available from the employer
Unfortunately, this punishes employees who do not report sexual harassment because they fear retaliation. Because California law doesn’t limit employer liability for harassment by a supervisor, California state courts generally provide a more hospitable venue for harassment claims.
Before you file a lawsuit, however, you or your lawyer must file a complaint with the federal Equal Opportunity Employment Commission, the California Department of Fair Employment and Housing (CDFEH), or both. The law requires a regulatory proceeding in front of one of these agencies before a lawsuit can proceed. Once you have filed a lawsuit, you may recover damages.
Once you have filed a sexual harassment complaint, even with your employer, the law protects you from retaliation at work, such as demotion, termination, or even just giving you less desirable assignments. The law extends similar protection to potential witnesses.
Wherever you might end up filing a complaint, seek legal counsel quickly, as filing deadlines are fairly tight if you intend to pursue government remedy. If your supervisor or a co-worker harasses you, you have 180 days to file a complaint with the federal EEOC, and one year to file with the CDFEH.
Employers Have Legal Obligations to Prevent Sexual Harassment
Obviously, it simply makes sense for any employer to put procedures in place to curtail sexual harassment. Those procedures should address both prevention and correction. It’s just good business to avoid or quickly halt such disruptive activity in the workplace.
In California, it also is the law. Businesses with 50 or more employees, which include independent contractors, are required to give sexual harassment prevention training to all supervisors every two years. Any employee who takes a position as a supervisor must take the two-hour course within six months. Any training must explain:
- The definition of sexual harassment under the applicable state and federal statutes
- What conduct constitutes sexual harassment
- Company and government policies designed to help victims of sexual harassment, including complaint avenues and other remedies, as well as any other resources for victims of sexual harassment
- Ways to prevent sexual harassment
- The obligation of supervisors to report sexual harassment
- Methods by which employers must correct harassing behavior
- What to do if the supervisor is personally accused of harassment
- The elements of an effective anti-harassment policy and how to implement it
This list is not exhaustive. The state does not issue licenses for people providing sexual harassment training, but the regulations deem three categories of people as qualified trainers:
- Attorneys who have been members of the bar of any state for at least two years and whose practice includes employment law under the Fair Employment and Housing Act or Title VII of the federal Civil Rights Act of 1964
- Human resource professionals or harassment prevention consultants with at least two years of practical experience in designing or conducting courses on discrimination, retaliation, and sexual harassment prevention; responding to sexual harassment or other discrimination complaints; investigating sexual harassment complaints; or advising employers or employees about discrimination, retaliation, and sexual harassment prevention
- Law school, college, or university instructors with a post-graduate degree or California teaching credential and either 20 hours of instruction about employment law under the Fair Employment and Housing Act or Title VII of the federal Civil Rights Act of 1964
Employers have other duties under California law. These broader and more general duties include:
- The duty to prevent harassment. State law requires employers to use “all reasonable steps” to prevent discrimination or harassment. This can include policies to address harassment and set forth procedures that establish what the employer and the employee are supposed to do in the event of harassment.
- The duty to distribute California’s harassment pamphlet, which all California employers, regardless of size, must give to all employees.
- The duty to put in place a written anti-harassment, discrimination, and retaliation policy that meets certain requirements set forth in the regulations. Such policies must include the employer’s complaint procedure, instructions to supervisors requiring them to report any complaints, and confirmation that the employer will undertake a fair investigation in a timely manner in the event of a harassment complaint. Among other requirements, the employer now must get from employees a written acknowledgment that the employee has received the written policy.
- The duty to train supervisors. As discussed above, this duty extends to all California employers with 50 or more employees; and
- The duty to investigate complaints. California makes it illegal for an employer to fail to take immediate action to halt harassment when “the entity, or its agents or supervisors, knows or should have known of this conduct.” The law also makes employers liable if they don’t take “reasonable steps” needed to prevent discrimination or harassment.
If You Are a Victim of Sexual Harassment in the Los Angeles area, Contact the Attorneys of Winer, Burritt & Scott, LLP
If you were a victim of sexual harassment in the Los Angeles area, consult a lawyer to determine your rights. Act quickly, because filing deadlines are tight in these complicated harassment cases.
The sexual harassment attorneys of Winer, Burritt & Scott, LLP, can assist you in protecting your rights under such circumstances. You can reach us at (510) 433-1000 or through our website.
**We do not represent perpetrators of sexual harassment or those who are accused of sexually harassing behavior.