The issue of sexual harassment has dominated the news and social media with numerous claims made against Harvey Weinstein, Al Franken Kevin Spacey, Matt Lauer and many others. Unfortunately, workplace harassment, specifically sexual harassment, has become far too common and often goes either unreported or ignored by the employer. There are, however, both federal and state protections against sexual harassment in the workplace. In California, the Fair Employment & Housing Act (“FEHA”) prohibits sexual harassment and requires that an employer take the reasonable steps necessary to prevent harassment. Similarly, Title VII of the Civil Rights Act provides the analogous protections under federal law. In most cases, California employees file sexual harassment claims under FEHA as its protections are more expansive than the Civil Rights Act.
Quid Quo Pro Harassment
One type of sexual harassment is known as quid pro quo harassment. In a nutshell, this type of harassment involves a supervisor holding some form of job benefit over the subordinate employee’s head in connection with a sexual advance. For example, the supervisor threatens the employee with the loss of some benefit, such as a job title, or offers a raise in exchange for sex. A supervisor need not directly threaten an employee with a loss of a job benefit as the threat can be implied with references to sexual acts that should have absolutely no involvement in the employee’s work environment.
The second category of sexual harassment involves conduct that creates a hostile work environment for the employee. A hostile work environment can result by way of offensive touching, inappropriate emails or text communications, and/or sexually charged comments or jokes. California law normally requires more than one vulgar comment or inappropriate touching to be actionable as the sexual harassment must be pervasive in a workplace. Although an isolated sexually charged comment or touching should have no place in the workplace, they are unfortunately legally insufficient for purposes establishing a sexual harassment claim. Part of the logic behind the pervasiveness requirement may be that individuals have differing views on the type of comments or conduct that is considered acceptable in the workplace so that it is nearly impossible to develop a bright line rule.
In contrast to most other FEHA claims for discrimination or retaliation, supervisors and coworkers can be held personally liable for sexual harassment. Similarly, your employer is legally obligated to take the reasonable steps necessary to prevent harassment that should obviously include an objective and thorough investigation after receiving notice of potential improper conduct. (California Government Code §12940[k]).
The comments and behavior that make up a viable sexual harassment claim can be complicated. If you or a fellow employee were subjected to unwanted sexual advances or other inappropriate conduct in the workplace, contact the Perrin Law Group today for a free consultation.
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