Fighting for the Rights of Sexual Harassment Victims in Oakland, California
Sexual harassment in the workplace violates both state and federal law. Unfortunately, it still occurs with shocking regularity, and recently it has proven nearly impossible to read or watch the news without hearing about another high-profile case of sexual harassment or assault.
People who get sexually harassed at work are often unable to do their jobs, they suffer significant psychological and emotional harm, and they may even stop coming to work simply to avoid the offensive behavior. As such, it is not an exaggeration to say that sexual harassment can ruin lives, both personally and professionally.
Fortunately, both federal and California law provides victims with legal remedies. If you are subjected to sexual harassment at work, take affirmative steps to put a stop to that harassment and explore your legal options as soon as you can. To discuss your case with an experienced lawyer, call Winer, Burritt and Scott, LLP today at (510) 433-1000 or send us an email through our online contact form.
Sexual Harassment in California: What Is It?
State regulations governing sexual harassment define it as unwanted sexual behavior. This can include sexually motivated or oriented visual, verbal, or physical conduct. This definition covers a wide array of offensive behavior—including harassment because of gender when the victim is the same gender as the harasser. According to the California Department of Fair Employment and Housing (CDFEH), sexual harassment includes:
- Visual conduct, including staring or leering, sexual gestures, and displaying sexually suggestive objects, such as pictures, cartoons or posters
- Verbal conduct, such as derogatory comments, cursing, sexual slurs or innuendoes, and 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
- Taking or threatening retaliatory action after the victim rejects sexual advances
This by no means constitutes the full extent of the behavior that state or federal law considers sexual harassment, but it describes the broad parameters of harassment. Obviously, individual cases involve questions of fact that a regulatory agency or a jury at trial will determine.
Types of Sexual Harassment
Federal and California law recognizes two different forms of sexual harassment. The first and most flagrant involves a scenario where an employee is, implicitly or explicitly, given a choice by a superior of having sex in return for some type of employment action, such as hiring, promotion, or even just keeping a job.
This type of harassment is often referred to as “quid pro quo” harassment. Quid pro quo is a Latin phrase that translates as “this for that,” meaning you will trade one thing for another. In the case of quid pro quo sexual harassment, this means you are required to trade sex for your job. The harassment need not take the form of an explicit offer. The person demanding sex might have sufficient power in your workplace or industry that the person asking for sex isn’t really asking—it’s a demand, and the choice is to assent to the request or suffer adverse employment actions.
Fortunately for people who face this type of harassment from a supervisor, California law holds employers strictly liable for sexual harassment committed by supervisors.
Strict liability means that if the plaintiff can show that the alleged harassment took place, the employer is liable for damages, period. There are no special defenses or circumstances that allow the employer to escape liability for the harassing supervisor’s actions. The complaining employee can recover lost wages and compensation for other economic losses—such as the cost of counseling that resulted from the harassment and any lost promotions—as well as for emotional distress, attorney fees, interest on any damages awarded, and potentially for punitive damages. A plaintiff may qualify for punitive damages if the company’s officers, directors, or other managing agents knew about the harassment and did not take prompt action to put a halt to it.
Unlawful sexual harassment also occurs when the harassment is so severe or pervasive as to create a hostile work environment. Examples of conduct that can create a hostile work environment include jokes, comments, unwanted touching, showing others sexually explicit or suggestive pictures, or gestures. In many cases, an isolated incident is not sufficient to create a hostile work environment, while a pattern of behavior is.
Also, the harassment need not target the complaining employee to create a hostile work environment. For example, supervisors or coworkers can openly make rude or sexually explicit comments, off-color jokes, inappropriate remarks, and the like within earshot of but not directed at the complaining employee. That still can constitute a hostile work environment, depending on its pervasiveness or severity.
Plaintiffs can hold employers strictly liable for a hostile work environment, just as with quid pro quo harassment, but must meet certain conditions. California law allows the plaintiff to hold the employer strictly liable for damages if a supervisor is the harasser. If the harassment that creates a hostile work environment comes from a coworker who does not supervise the plaintiff, 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 stop the harassment.
Federal law is less stringent on strict liability for hostile work environment harassment. Even if a supervisor commits harassment, the employer bears no liability if the employer does not take “adverse employment action” against the employee alleging harassment. Adverse employment action can include termination, demotion, or denial of promotion.
In addition, if the employer can prove that it exercised reasonable care to prevent harassment, took prompt action to halt the harassment when the employer learned harassment took place, and the harassed employee acted unreasonably in failing to avail herself (or himself) of preventive or corrective measures made available by the employer, an employer can avoid liability. This tends to punish employees who do not report sexual harassment out of fear of retaliation.
Because California law doesn’t limit employer liability for harassment by a supervisor, California state courts generally are a more plaintiff-friendly venue for these kinds of harassment claims.
The Procedures for Seeking Remedy for Sexual Harassment
You or your lawyer must file a complaint with the EEOC, the CDFEH or both before you can file a lawsuit. These agencies will either decide the case or issue a letter authorizing you to sue. Once you have filed a lawsuit, you may recover damages if you prove your case. Furthermore, from the time you file a complaint for sexual harassment, whether with your employer or with the state or federal authorities, the law protects you from retaliation at work, such as less desirable job duties, termination, or loss of pay. The law also protects potential witnesses in sexual harassment cases from retaliation.
Regardless of whether you intend to file a state or federal claim, retain an attorney as soon as you realize you may have a case. You only have 180 days to file a complaint with the federal Equal Opportunity Employment Commission, and one year to file with the California Department of Fair Employment and Housing. You must have approval from one of these regulatory agencies before you can bring a lawsuit.
Employers Have Legal Obligations to Prevent Sexual Harassment
California law requires businesses employing 50 or more people, including independent contractors, to provide sexual harassment prevention training to all supervisors every two years. In addition, any employee who becomes a supervisor must receive training within six months of starting the position. The training must explain:
- The definition of sexual harassment under the applicable state and federal statutes
- The conduct that can constitute sexual harassment
- Company and government policies designed to help victims of sexual harassment, including how employees can complain about harassment as well as other available remedies, including any other resources for victims of sexual harassment, be they government- or company-provided resources
- Ways to prevent 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 does not include all of the training required by state law. And while the state does not issue licenses for people providing sexual harassment training, regulations set out the qualifications required for people to provide sexual harassment training:
- Attorneys who have maintained bar memberships in any state for at least two years and who have practiced 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 post-graduate degrees or California teaching credentials 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
What to Do if You Believe You Were Sexually Harassed in the Workplace
Sexual harassment at the workplace can frighten and traumatize anyone. Many people feel helpless and simply do not know where to turn or what to do. As a result, they ignore the matter and simply hope it gets better with time or that they learn to live with it.
The reality is that sexual harassment is never acceptable and that victims should do everything they can to assert their rights.
While every case is different, follow these general guidelines if you believe that you are the target of sexual harassment at work.
- If you believe that someone is threatening your physical safety, call your local law enforcement agency immediately.
- Discuss your situation with an attorney who has experience in dealing with sexual harassment. The sooner you retain a lawyer, the sooner you can proceed with your claim and protect your legal rights.
- Keep a log of instances of offensive conduct, including day, date, time, the details, and a list of any witnesses. If the harassment involves media that you can save (emails, texts, voicemails, and the like) save them, regardless of how uncomfortable they may make you—they may serve as evidence later.
No one should have to live with sexual harassment. Unfortunately, your right to freedom from harassment will not stand up for itself, and you will need to hold your harasser (or your employer) accountable for your treatment.
If You Have Been a Victim of Sexual Harassment in the Oakland area, Contact the Attorneys of Winer, Burritt and Scott, LLP
If you suffered sexual harassment in the Oakland area, consult a lawyer to determine your rights. We know how difficult it is to come forward and are ready to fight for your rights.
At Winer, Burritt and Scott, LLP, we’ve recovered more than $200 million on behalf of our clients, and we have the skill and experience necessary to bring your case to the best resolution possible. Act quickly, because filing deadlines are tight and complicated harassment cases can take time to prepare.
To schedule a free case evaluation with an Oakland sexual harassment lawyer at Winer, Burritt and Scott, LLP, call our office today at (510) 433-1000 or send us an email through our online contact form.
**We do not represent perpetrators of sexual harassment or those who are accused of sexually harassing behavior.