Working with Individuals in San Francisco Who Have Suffered from Workplace Sexual Harassment
Sexual harassment is a pervasive problem in the modern American workplace. Though state and federal law prohibits it, the #MeToo movement shows that it takes place with unfortunate regularity across every industry and location, including San Francisco. Workplace harassment can damage nearly every aspect of a victim’s life. In many cases, victims suffer emotionally and psychologically from sexual harassment and start to fear (or even avoid) coming to work. Not surprisingly, sexual harassment often results in poor job performance. In this way, sexual harassment can devastate its victims, both personally and professionally.
Fortunately, there is help available. At Winer, McKenna, Burritt & Tillis LLP, we are committed to representing the rights of people who suffer from workplace harassment. We do everything we can to hold harassers and employer liable. We know how hard it is to come forward, so we provide a safe, compassionate, and judgment-free environment where victims are free to tell their stories. To schedule a free case evaluation with one of our San Francisco sexual harassment lawyers, call our office today at (510) 433-1000 or contact us online.
Defining California Sexual Harassment
State regulations governing sexual harassment define it as unwanted and uninvited behavior of a sexual nature, such as sexually motivated or oriented visual, verbal, or physical conduct. This definition can include a wide variety of offensive behavior, including where the harasser is the same sex as the victim. Below is a list provided by the California Department of Fair Housing that details workplace conduct that would very likely constitute sexual harassment:
- Visual conduct, including staring or leering, sexual gestures, or displaying sexually suggestive objects, such as pictures, cartoons or posters
- Verbal conduct, which can include derogatory comments, swearing, sexual slurs, sexually suggestive innuendoes or double-entendres, 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, such as trying to keep a person in a place they wish to leave
- Offering employment benefits in exchange for sexual favors
- Making or threatening retaliatory action if the victim rejects sexual advances
State and federal law recognize two main—and easily distinguished—forms of sexual harassment. The first, most blatant form of harassment occurs when a harasser, whether a co-worker, supervisor or the CEO, indicates that a sexual encounter will result in some type of employment action—whether positive or negative. For example, a superior could demand sex to prevent someone from losing a job or condition a hiring on the basis of sexual performance or favors. In either case, this type of conduct amounts to harassment.
This is generally called “quid pro quo” harassment, a Latin phrase meaning “this for that.” In practical terms, it means you will trade one thing for another—in the case of sexual harassment, you trade sex for some type of employment action—a hiring, promotion, raise, or desired assignment.
This type of harassment need not come in the form of an explicit “offer.” And a person who offers to trade you employment benefits for sexual favors is powerful enough in your workplace or industry that the person isn’t really asking for sex. That’s a demand. Your choice is to provide sexual favors or lose your job. At a minimum, refusing to comply means that you give up on any chance of advancement in your career, at least with that employer. As the Harvey Weinstein case is showing, such a person can gather enough power within an industry that refusal can mean giving up on your chosen career entirely.
An employer is held strictly liable under California law in cases where a superior or supervisor uses that authority in the workplace to harass or intimidate an employee in an attempt to receive sexual favors in exchange for advancement or continued employment. This is true even where the harassment does not result in the victim providing sexual favors.
Strict liability means that the employer is liable regardless of whether it was negligent or otherwise at fault. The employer has no special defenses available to mitigate or avoid liability. The plaintiff can recover lost wages, compensation for any other economic losses as well as for emotional distress, attorney fees, interest on any damages awarded, and potentially for punitive damages. The court may award punitive damages, designed not to reimburse the plaintiff but to punish the defendant, if the company’s officers, directors, or other managing agents knew about the harassment and failed to take appropriate action to stop it.
Legally actionable sexual harassment can also occur when conduct creates a hostile work environment. A single incident of harassment is not usually sufficient to create a hostile work environment; rather, severe or pervasive conduct must create a work environment that a reasonable person would consider intimidating, hostile, or abusive. Examples of conduct that could create a hostile work environment include:
- Unwanted touching
- Sexually inappropriate jokes
- Describing sexual encounters
- Showing sexually suggestive or explicit images
- Making sexually suggestive gestures
A hostile work environment can exist when others engage in sexually inappropriate conduct and an employee is exposed to it—even if nobody directs the conduct at that employee. Thus, others do not need to target a person with inappropriate conduct to give rise to a valid sexual harassment claim.
Under California law, employers are strictly liable for hostile work environment harassment so long as the harasser has a supervisory role. If the harasser is a co-worker, however, the employer can only face liability if the victim can show that the employer knew or should have known that the harassment took place and did not take steps to stop it.
Federal law differs somewhat. Even if a supervisor is the harasser, the employer is not liable so long as the employer does not take “employer actions” against the person reporting harassment, such as termination or demotion; the employer can prove that it exercised reasonable care to prevent harassment and took prompt action to halt the harassment when the employer learned harassment took place; and that the harassed employee unreasonably failed to take advantage of preventive or corrective measures available from the employer. Unfortunately, this punishes employees who do not report sexual harassment for fear of retaliation.
Because California law doesn’t limit employer liability for harassment by a supervisor, plaintiffs in many cases may prefer to make a state rather than a federal claim.
Filing a sexual harassment claim, however, is not as easy as going to the appropriate courthouse and filing a lawsuit. These claims must first start with either the Equal Employment Opportunity Commission (EEOC) or California Department of Fair Employment and Housing—or both. These agencies will investigate your claim and determine whether to take any agency action. In addition, if the agency determines that you were the victim of sexual harassment, it will issue a right to sue letter, allowing you to file a lawsuit to recover damages.
Remember: You are protected from retaliation from your employer, as are people who may serve as witnesses to your sexual harassment claim. Prohibited retaliation includes termination, assignment to less desirable job duties, reduction in pay, or demotion.
Regardless of whether you file your claim at the state or federal level, talk to an attorney before taking any legal action. In fact, speak to a lawyer as soon as you realize that you may have suffered harassment. Sexual harassment claims have extremely short time limits—statutes of limitations—in which to file them, so any delay could jeopardize your ability to recover compensation and hold your harasser accountable.
Employers Have Legal Obligations to Prevent Sexual Harassment
It makes sense for any employer to put procedures in place to both prevent and correct sexual harassment. It’s just good business. Such disruptive activity in the workplace can’t be good for any company.
In California, it also is the law. Businesses with 50 or more employees, including independent contractors, must give sexual harassment prevention training to all supervisors every two years, and to anyone hired or promoted to a position as a supervisor within six months of taking the position. Any training must include:
- 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 supervisors have to report sexual harassment
- Methods by which employers must correct harassing behavior
- What to do if the supervisor is personally accused of harassment
California does not issue licenses for people providing sexual harassment training. State regulations, however, identify three categories of people who are qualified as trainers:
- Attorneys who have maintained bar memberships in 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
If You Believe You Have Been the Victim to Sexual Harassment at Work, Take Steps to Protect Your Rights
When you are subjected to sexual harassment, you may not know how to handle the situation. This is true whether the harassment involved a one-time incident or an ongoing pattern of unacceptable behavior. In some cases, it may feel easier to simply ignore the situation and hope it just goes away.
Unfortunately, does not usually happen—unchecked, sexual harassment tends to continue or even get worse. For this reason, people who experience workplace sexual harassment need to take steps to protect their legal rights in the event that they need to file a claim.
Here are some things that you should do if you suspect that your coworkers or supervisors are engaging in conduct that constitutes sexual harassment:
- Discuss the situation with a lawyer who has experience in dealing with sexual harassment cases as soon as you can. There are extremely short time limits for filing a sexual harassment claim, so any delay could jeopardize your ability to seek justice. Your lawyer can guide you through all of the steps you will need to take to protect your rights.
- Document each instance of conduct that you believe constitutes harassment. If you are receiving inappropriate communications like chats, emails, texts, or voicemails, save them, regardless of how uncomfortable they make you feel. You may need to use them as evidence later.
If You Have Been a Victim of Sexual Harassment in the San Francisco area, Contact the Attorneys of Winer, Burritt & Tillis LLP
At Winer, Burritt & Tillis LLP, our San Francisco sexual harassment lawyers are dedicated to protecting the rights of employees who were victimized by inappropriate sexual conduct at the workplace. Our partners have more than six decades of combined legal experience, giving us the experience and acumen necessary to bring your case to a successful resolution. To schedule a completely free, no-obligation case evaluation with a legal professional, 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.