Selections from A Victim’s Guide To Sexual Harassment In California

•  Introduction
•  Chapter One.  What is Sexual Harassment?
•  Chapter Two.  Quid Pro Quo Sexual Harassment Hostile Work Environment Sexual Harassment
•  Chapter Three.  Gender Based Discrimination:
    Stereotypes and Pregnancy
•  Chapter Four.  Steps the Victim Can Take To Contend With Sexual Harassment
•  Chapter Five.  Employer and Individual Responsibilities
•  Chapter Six.  Retaliation
•  Chapter Seven.  Infliction of Emotional Distress and Other Torts the Harasser May Have Committed
•  Chapter Eight.  So I Have a Case, What Now?



Victims of sexual harassment typically feel humiliated as a result of the oppressive experience of being harassed in the workplace.  A normal response is for victims to feel depressed, angry and powerless.  Under the emotional strain of sexual harassment, it is difficult to assess the situation and to respond appropriately and assertively.  This book is designed to help victims assess their situations and to advise them about how they should respond to the demeaning experience of sexual harassment in the workplace.

Sexual harassment can happen anywhere, but when it happens in or connected to the workplace it is unlawful under federal and California statutes.  This book describes the sometimes uncertain line between discourteous behavior in the workplace and unlawful sexually oriented behavior at work.  Some sexual conduct in the workplace is tolerated, but some sexual behavior, particularly if it is unwanted and severe or pervasive, is unlawful. 

The first thing you want to know when you are thinking about trying to find a sexual harassment attorney is whether you have a case.  Harassment can mean different things in different contexts.  One might consider unprofessional or rude behavior to be harassment, but rude behavior is not necessarily unlawful sexual harassment.  Some harassment might be grounds for dismissal, suspension or other adverse employment action.  Yet, that same behavior may not be sufficient grounds for a sexual harassment lawsuit.  This book investigates the varieties of sexual harassment in the workplace that will survive the judicial scrutiny of a lawsuit.

Certainly, unprofessional and discourteous acts might also be sufficient grounds for a sexual harassment lawsuit.  However, there are situations where an individual’s offensive and inappropriate behavior is insufficient to support a lawsuit.  The grounds for termination of employment or other adverse employment action depend upon individual employers, so there is a great deal of variety between employers as to how they respond to discourteous behavior and sexual harassment in the workplace.While an employer might reprimand, suspend or fire an individual for inappropriate behavior, that same behavior might not constitute a sufficient claim for sexual harassment in a court of law. 

This book features “Cases In Point” that describe the facts of real cases in which the courts determined whether the alleged behavior did or did not qualify as sexual harassment.  The table of contents summarizes the topic of each Case In Point, so that victims of sexual harassment can look for cases that parallel their experience in the workplace.  Cases In Point present a realistic view of what qualifies as sexual harassment and they can give victims preliminary information to consider about the viability of their claims, even before they consult a sexual harassment attorney. 

Regardless of whether a victim of sexual harassment intends to file a lawsuit, a victim’s first desire is to make the harassment stop.  Harassment is controlling and manipulative behavior that has an emotional impact on the victim, and the victim is likely to feel depressed and uncomfortable about having to go back into the workplace and face the harassment.  In extreme cases, a victim may even need to quit his or her job in order to escape the harassment.  Therefore, even before going to a lawyer, a sexual harassment victim needs to know what he or she can do in the face of harassing behavior. 

We set forth the steps that a victim can consider taking, such as documenting the incidents of harassment, finding personal and professional support to address the trauma of sexual harassment, and navigating the administrative process necessary to bring a legal claim.  It is important for victims of sexual harassment to realize that they are not alone.  The psychological impact of sexual harassment is often serious and seeking comfort from friends and family, and even the help of a trained mental health care professional, can be beneficial to a victim’s mental and physical well-being.  A mental health care professional can also prove helpful in a resulting lawsuit.

Pregnancy and pregnancy leave discrimination are forms of gender discrimination. Gender discrimination can overlap with sexual harassment, but gender discrimination has different legal elements.  A chapter in this book describes gender discrimination and focuses on statues that provide for pregnancy and family leave under federal and California laws.  There are several different statutes which provide for leave.  Having a baby should be a joyous time, yet due to the rising problem of “maternal profiling,” it has increasingly become a very stressful time.  Pregnancy should not put a woman’s employment in jeopardy or bar her from an employment opportunity.  If a woman is discriminated against because of her pregnancy, she can find the laws that are designed to protect her in this book. 

Sexual harassment victims may wonder who they can hold responsible for the harassment they have suffered.  Depending on the facts of a victim’s case and whether the lawsuit is brought in federal or California court, the rules vary on who can be held liable for the damages that the victim suffers from sexual harassment.  This book details the liability of employers, supervisors, coworkers and non-employees for sexual harassment and related claims.

In this book you will find that there are additional claims that are often made separately from, or in conjunction with, a sexual harassment claim.  Retaliation is a legal claim that allows victims to seek damages for being punished at work by their employer for making sexual harassment or gender discrimination complaints, or for refusing to carry out discriminatory personnel orders.  This situation often arises if a sexual harassment victim is fired after complaining to management about the underlying harassment.  Other additional claims include torts such as infliction of emotional distress, defamation, assault, and battery. 
Please note that sexual harassment laws vary state by state and the information contained in this book applies specifically to the federal and California laws that affect acts of sexual harassment in the state of California.  A victim must follow the practical steps with the California Department of Fair Employment and Housing (DFEH) and/or the federal Equal Employment Opportunity Commission (EEOC) in order to ensure that their legitimate claim is not dismissed as a result of not following administrative procedures in the allotted time.

This book focuses on civil lawsuits for damages for sexual harassment as opposed to criminal action that would be brought by a district attorney.  A severe act of sexual harassment such as rape is an example of a crime for which charges would be brought by a district attorney in a criminal case.  When rape occurs in the workplace, it can also be grounds for a civil action for damages to compensate the victim. 

There is a difference between consensual and unwelcome behavior.  In the context of a criminal case, consent to an act is a defense for the defendant, but consent is not a defense in a civil lawsuit for sexual harassment.  A major criterion in a civil lawsuit is whether the act was wanted or unwanted.  This concept recognizes the pressures that a victim can be under when a supervisor or boss uses the power and control of advances or demotion in the workplace in exchange for sexual favors.

Sexual harassment is not only a legal problem, but also a social and emotional problem; it is therefore important to address all aspects of the problems that victims of sexual harassment face.  People in power in the workplace who sexually harass subordinates are typically exhibiting controlling and abusive behavior to exploit subordinates sexually with the manipulative leverage of advancement in the workplace and/or with the threat of adverse employment consequences.  It is important that a victim find legal counsel who understands that an integral part of aiding a victim of sexual harassment is not just taking legal steps, but is also providing support to help the victim heal from the emotional scars left in the wake of sexual harassment in the workplace.

Chapter One.    What is Sexual Harassment?
I.  Overview
Sexual harassment can happen anywhere, but this book is focused on sexual harassment in the workplace.  Sexual harassment in the workplace is prohibited by federal and California statutes.  Sexual discrimination is also prohibited by statutes and in this chapter we explore the difference between sexual harassment and sexual discrimination.  We also give general examples of sexual harassment and sexual discrimination in the workplace.  Additionally, we introduce the applicable California and federal statutes.  In Chapter Two, we give more specific examples of what constitutes sexual harassment in the workplace.

Generally, sexual harassment can include any offensive or unwelcome attention of a sexual nature.  For example, you may be sexually harassed by someone whistling at you as you walk down the street or calling you a demeaning name at a neighborhood bar.  While these events can be traumatizing and harassing, for the purposes of this book, sexual harassment is limited to unwanted offensive conduct in the workplace, directed at an employee due to the employee’s sex. 

Workplace sexual harassment violates both federal and California law.  Sexual harassment includes quid pro quo sexual harassment and hostile work environment sexual harassment.  Quid pro quo sexual harassment occurs when a term of employment is expressly or implicitly conditioned upon acceptance of an unwelcome sexual advance.  Hostile work environment sexual harassment occurs when an employee is subject to unwelcome sexual or gender-related conduct that is sufficiently severe or pervasive to create a hostile or abusive working environment.

Chapter Two.    Quid Pro Quo Sexual Harassment and Hostile Work Environment Sexual Harassment
I.  Introduction

In this chapter we describe and give examples of both quid pro quo sexual harassment and hostile work environment sexual harassment.  Quid pro quo sexual harassment generally involves a person in power pressuring an employee for sexual favors in exchange for advancement in the workplace or under the threat of adverse employment action.  A single instance of quid pro quo sexual harassment is sufficient for the basis of a lawsuit.  In contrast, a single incident of hostile work environment sexual harassment does not qualify as a sufficient basis for a lawsuit, unless the incident is “severe,” that is unless the incident is very offensive.

In this chapter, we give examples of actual cases where the courts have found that the conduct involved was sufficiently severe or pervasive for the purposes of bringing a lawsuit, and we give examples where the courts have found that the conduct involved was insufficient to support a lawsuit for hostile work environment.  A victim of sexual harassment should look for a case that parallels his or her experience in the workplace.

We also discuss indirect victims of sexual harassment who under certain circumstances can also bring claims and lawsuits for sexual harassment, even though the harassing behavior was not directed to them.

 Chapter Three.  Gender-Based Discrimination:  Stereotypes and Pregnancy

I.  Introduction

Although sexual harassment in the workplace can be considered a form of gender discrimination, in this chapter we refer to gender discrimination as an offense distinct from quid pro quo sexual harassment and hostile work environment harassment.  As used here, gender discrimination refers to discrimination by management in personnel decisions based on an employee’s sex.  Some cases involve women being discriminated against in the workplace in regard to salary or advancement in comparison to men.  One Case In Point below talks about imposing stereotypes about how a woman should look in the workplace.  This chapter also addresses discrimination directed to women with children or pregnant women.

This chapter discusses the federal Family Leave Act, the California Pregnancy Disability Leave Statute, and the California Family Rights Act.  These statutes entitle pregnant women, employees with other disabilities, and employees with family members who need care, to the right to be granted leave from work.  Employers can be held liable for violating the rights of employees for leave under these statutes.

 Chapter Four.  Steps the Victim Can Take to Contend With Sexual Harassment

I.  Introduction
This chapter reviews both the legal and mental health care steps that a victim of sexual harassment should consider.  The steps of telling the harasser to stop and reporting the incident to management are connected to the issue of proving that the harassing conduct is unwanted.  The chapter concludes with Cases In Point that explain that even if a victim’s participation in a sexual episode is voluntary that does not necessarily mean the participation was welcome, as opposed to unwanted.  Courts have considered a victim’s behavior and even the victim’s dress as relevant factors in the determination of whether the harasser’s conduct was welcome or unwelcome.

The primary legal steps to contend with harassment in the workplace include telling the harasser to stop, complaining to a supervisor or the Human Resources Department, consulting an attorney, filing a complaint with the EEOC and/or the DFEH, and ultimately filing a lawsuit for sexual harassment. Other steps a victim can take even before consulting an attorney are to find personal support, to get professional health care counseling to help to cope with the psychological impact of the harassment, and to document the incidents of harassment. 

 Chapter Five.  Employer and Individual Responsibilities

I.  Introduction
The federal Title VII applies to employers with at least fifteen employees, but California FEHA requires just five employees for the employer to be liable for discrimination and only one employee for an employer to be liable for sexual harassment.

This chapter discusses in detail the potential liability for (1) employers, (2) supervisors, (3) non-supervisory personnel and (4) non-employees for sexual harassment in the workplace.  Under the federal Title VII, only the employer is liable for sexual harassment in the workplace and the employer’s responsibility is automatic under vicarious liability principles if the harassment is from a supervisor.  They are liable on another negligence theory if the harassment is from other employees in the workplace. 

Under California FEHA, an employer is automatically (strictly) liable for harassment by supervisors and is liable on a negligence theory for non-supervisory personnel and non-employees.

Under California FEHA, but not under federal Title VII, supervisors and non-supervisory employees can be held individually responsible for sexual harassment.

Non-employees are not liable under the sexual harassment statutes, but they may be held liable for common law torts committed against the victim, such as assault and battery.

This chapter addresses the somewhat expansive definition of a supervisor as applied in sexual harassment law and addresses liability for harassment that takes place outside of the workplace, but is between employees of the same company.

We also make a distinction between individual liability for sexual harassment as opposed to individual liability for retaliation or discrimination under the California FEHA.  FEHA holds only the employer responsible for retaliation and discrimination.

The chapter addresses affirmative defenses under both California law and federal law that limits liability for damages under the circumstances where a victim has delayed reporting the harassment to the employer.  An employer must show that if the victim had made a timely report of the sexual harassment it is likely the employer would have stopped the harassment and thereby mitigates the damages that the victim suffered.  The affirmative defenses provide a mechanism for the employer to avoid part of the liability for damages if the victim delays in reporting the harassment.

The chapter also sets forth the criteria for a victim to obtain an award for punitive damages, which are damages that are designed to punish the defendant and to make an example of the defendant to discourage others from engaging in similar misconduct.

Chapter Six.  Retaliation

I.  Introduction

FEHA at California Government Code Section 12940(h) declares that it is an unlawful employment practice for an employer “to discharge, expel or otherwise discriminate against any person because the person has opposed any practices forbidden under this part” (referring to Section 12940 which prohibits, among other things, sexual harassment and gender discrimination) “or because the person has filed a complaint, testified, or assisted in any proceeding under this part.”  A violation of California Government Code Section 12940(h) is referred to as retaliation.  The federal Title VII has a similar anti-retaliation provision.  A typical retaliation claim arises if an employee makes a claim of sexual harassment or gender discrimination and the employer responds with some type of adverse employment action against the employee.  This chapter addresses retaliation claims.

If, for example, an employee makes a claim of sexual harassment that does meet the legal criteria of being sufficiently severe or pervasive, then the employer retaliates with adverse employment action against the employee, the employee still has the claim for retaliation independent of the merits of the sexual harassment claim that triggered the retaliation.  When the underlying claim for sexual harassment has legal merit and the employee has suffered retaliation in addition, the employee will typically bring claims for both sexual harassment and retaliation.

Chapter Seven.  Infliction of Emotional Distress and Other Torts the Harasser May Have Committed

I.  Introduction

In addition to the statutory claims under California FEHA and federal Title VII, a victim of sexual harassment may also have related common law tort claims against the harasser.  Depending upon the circumstances of the case, attorneys make tactical decisions as to whether to accompany a claim for sexual harassment with a claim for infliction of emotional distress, assault, battery, defamation, invasion of privacy, or some other tort that might fit the circumstances.  Tort claims can be particularly useful in the event that a statutory element or prerequisite for a claim has not been met, such as when a plaintiff has failed to obtain a right to sue letter for all or part of a harassment claim.

A sexual harassment victim should be aware that mental health care records can come into play in making a claim for psychological damages under sexual harassment statutory claims or for common law tort claims for emotional distress.

When a victim suffers from sexual harassment, there are often related torts that the harasser has committed during the course of the harassment.  A tort is a civil wrong recognized by the common law that has caused damage to a person or property, for which a plaintiff can sue for damages.  Torts that often coincide with sexual harassment are intentional infliction of emotional distress, negligent infliction of emotional distress, assault, battery, defamation, and invasion of privacy. 

An attorney can advise a victim of sexual harassment on any other claims which the victim may have against the employer or harasser in addition to a sexual harassment claim.  The addition of alternative claims may or may not help to attain a greater award for damages, depending on the facts of the case.

Often, an attorney will decide to add a claim for a tort as a back-up devise to the central claim for sexual harassment.  However, normally the damages for the harassment and the tort will be duplicative, and therefore will not result in a higher damage award for the plaintiff.  If a jury does award damages to a plaintiff for emotional distress under general damages resulting from the sexual harassment, and then also awards the plaintiff damages for the tort of infliction of emotional distress based on the same harassing conduct, the damages could be duplicative, and the award could be dramatically reduced by the court.


Chapter Eight.  So I Have a Case, What Now?

I.  Introduction

For sexual harassment and discrimination claims, before an employee can bring a lawsuit for damages, an employee must first exhaust administrative remedies by filing a claim with the California DFEH or the federal EEOC.  The filing of the administrative claim is required by the statutes, FEHA and Title VII, as a necessary step before one can bring a lawsuit.  The complaint to the California DFEH or to the federal EEOC must contain sufficient facts to support the eventual claims in the lawsuit for either harassment, discrimination, or retaliation in order for the claim in their lawsuit to survive legal scrutiny.

Under California FEHA, a complaint must be brought to the DFEH within one year from the date of the last incident of harassment or discrimination.  Under Title VII, the victim has 180 days from the incident, but that period is extended to 300 days if the victim also institutes a complaint with the DFEH.

This chapter discusses the statutes of limitations and the manner in which the courts deal with continuing violations, such as where the incidents of sexual harassment occur over periods of years.

Many employers are now requiring employees to sign mandatory arbitration agreements, which can be enforceable for arbitration of sexual harassment claims if the employer follows all of the requirements for an arbitration agreement.


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