Obtaining a Legal Remedy for Sexual Harassment
Sexual harassment in the workplace is completely unacceptable, and no employee should have to experience or tolerate it. Under both California state and federal discrimination laws, sexual harassment constitutes illegal gender discrimination. If you are the victim of sexual harassment in Los Angeles or in other southern California cities, you may be entitled to legal redress under existing federal and California civil laws.
"Quid Pro Quo" Sexual Harassment
There are basically two types of sexual harassment identified by the federal Equal Employment Opportunity Commission (EEOC), the federal agency responsible for overseeing the implementation of Title VII of the federal Civil Rights Act of 1964.
The first type of sexual harassment is referred to as "quid pro quo" harassment. A "quid pro quo" case generally arises in the context of a superior promising to "help" another employee in return for sexual favors. The "help" may be in the form of a promotion, a pay raise, or simply refraining from taking a negative measure against the employee.
In many cases, the "harassment" results when the supervisor retaliates against the employee as a result of a refusal, such as denying a promotion or a pay raise, or otherwise making the employee's job unpleasant. In some cases, the retaliation can be so severe as to result in "constructive discharge" of an employee-that is, the harasser makes the employee's job so unbearable that they have no choice but to resign. Quid pro quo harassment is illegal under Title VII of the Civil Rights Act, and victims of this type of sexual harassment may be entitled to damages against their employer. Under California law, a harasser may also be personally liable.
Like other sexual harassment claims, it is not just females who can be the victims of this type of sexual harassment from males, but can also be males, and may include harassment by individuals of the same sex as the victim. If you are the victim of this type of sexual harassment, it is critical that you take steps to protect your rights by obtaining the advice of an experienced sexual harassment attorney to find out about your legal rights and responsibilities.
"Hostile Work Environment" Sexual Harassment
The second type of sexual harassment is based upon a "hostile work environment." A hostile work environment is workplace in which there is a persistent and pervasive atmosphere that is demeaning to one sex in such a way as to make the workplace intimidating, hostile, or offensive.
Sexual harassment claims based upon a "hostile work environment" is more common, and sometimes harder to establish, than quid pro quo sexual harassment. A hostile work environment may be established, for example, if co-workers consistently tell lewd jokes; post offensive cartoons, photographs or pictures; permit sexually derogatory or offensive comments or banter; or physically demean others by offensive touching or other physical acts (such as making lewd or sexual gestures and expressions or blocking one's path).
While the elements listed above may be typical of a "hostile work environment," they are not exclusive; there is no set formula for determining what constitutes a "hostile work environment." Instead, each case is based upon its own facts. In addition, in order for a "hostile work environment" claim to succeed, it must be based on conduct that is pervasive; one incident is generally not sufficient to establish a case, although a single comment or incident that is extreme or severe may create liability.
Finding Liability for Sexual Harassment
The EEOC requires employers to be pro-active with respect to preventing sexual harassment. That is, employers subject to federal civil rights laws must have a sexual harassment policy in place prior in advance of any incidents taking place. Under Title VII of the Civil Rights Act, employers must post a discrimination poster, and California law further requires employers to post a sexual harassment prevention notice advising employees of their right to a harassment-free workplace.
There are some important elements to note about a "hostile work environment" claim:
- The claimant need not be the immediate victim of the harassment; even others who merely witness the conduct may make a claim for a "hostile work environment";
- The harasser need not be a supervisor, but can be a co-worker, an employer's agent, or a supervisor or co-worker who works in another division or department than the harassed employee, or even a customer or other business associate;
- The harassment need not result in an economic or physical injury to the harassed individual, such as the denial of a pay raise or promotion; there need not be any adverse affect on employee beyond the existence of a hostile work environment;
- The conduct in question must be unwelcome;
- The "unwelcome" nature of the conduct is not entirely subjective, but is based also upon what a reasonable person in the same position as the victim would perceive to be unwelcome;
- As with quid pro quo harassment, the victim may be male or female, and the harasser and victim need not be of the opposite sex.
- As with quid pro quo harassment, the laws also prevent retaliation: if an employee makes a charge of sexual harassment, any adverse action taken against that employee for making the charge may make a company civilly liable, even if the underlying conduct for which the individual complained may not constitute a valid claim for sexual harassment.
As a general rule, under federal law, an employer may not be held liable if the employer was not aware of and had no reasonable means of ascertaining the existence of pervasive harassing conduct. So, for example, if an employer takes affirmative steps to prevent sexual harassment by publishing a policy, trains its employees on its policy, and prescribes a mechanism for handling complaints of sexual harassment, it may not be held liable if it adheres to its published policies and follows through with effective corrective action, or if the harassed employee never utilizes these measures to notify the employer and enable it to take corrective measures.
Under California's Fair Employment and Housing Act (FEHA), employers have an even greater responsibility than under Title VII. California Government Code Section 12940 provides, in part:
Harassment of an employee, an applicant, or a person providing services pursuant to a contract by an employee, other than an agent or supervisor, shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action. An employer may also be responsible for the acts of nonemployees, with respect to sexual harassment of employees, applicants, or persons providing services pursuant to a contract in the workplace, where the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action.
Under this rule, managers and supervisors must take immediate corrective action. Given this scheme, if a manager or supervisor is the individual carrying out the harassment, it is possible for the employer in California to be held "strictly liable" for the conduct, regardless of the employer's policies and efforts to address or prevent sexual harassment.
What to Do if You are the Victim of Sexual Harassment
If you are the victim of sexual harassment at work, it is important to let your employer know. Even if you believe that you are capable of "handling the problem," your efforts may alert your employer to a problem that needs to be addressed-either with respect to yourself, or on behalf of other employees who may similarly be victims of the harasser. Make sure you document incidents clearly and precisely when they are fresh in your mind; note the dates and times, and be clear, honest, and candid.
Even after you report an incident, do not necessarily expect your employer to take immediate remedial action. Remember, an employer must be fair to all parties, and cannot pass judgment until it has heard all the evidence, including hearing the viewpoint of the alleged harasser. While the employer must take your claim seriously, its responsibility is to investigate the allegations and to enforce its policies and, only if necessary, to take necessary corrective action. Also remember that, while you may want the information you convey to remain confidential, once you have reported the incident, the employer must take all necessary steps to address the problem. While your employer must use discretion, at some point, confidentiality may not be possible. Despite this concern, however, you must still report the problem.
Seek the Advice of a Knowledgeable Sexual Harassment Attorney
If you have been sexually harassed at work, either from a supervisor who is pressuring you for sexual favors or if your workplace presents an atmosphere that is sexually offensive or hostile, you should also consult an experienced sexual harassment attorney in order to be fully aware of all of your legal rights and remedies. For employees in Los Angeles or elsewhere in southern California, The Nourmand Law Firm has knowledgeable and sympathetic sexual harassment attorneys who can advise you and answer your questions. Even after you have reported the situation to your employer, your attorney can help you monitor the situation to make sure that your employer is taking the necessary steps to protect your right to a comfortable, safe, and non-discriminatory workplace.
At The Nourmand Law Firm, we are knowledgeable about both California and federal sexual harassment laws, and we aggressively pursue claims on behalf of sexual harassment victims. It is important that you realize that, even if you have undergone some sexual harassment training, the laws that govern sexual harassment can be detailed and complex, and you may be entitled to a remedy even before your employer has fully investigated or resolved your claim.
If The Nourmand Law Firm agrees to pursue a claim on your behalf, we may be able to obtain damages for you, such as:
- Lost back pay;
- Foregone future earnings;
- Emotional distress;
- Punitive damages; and/or
- Attorney fees and costs.
Don't let yourself be victimized by sexual harassment, and don't let yourself be victimized by an employer whose primary goal is to protect itself from liability, rather than enforce your rights. If you have been sexually harassed at work, or are feeling the pressure of working in a hostile work environment, contact a California sexual harassment attorney from The Nourmand Law Firm today for a free consultation, either by phone or using our secure online case request form. Our Los Angeles sexual harassment lawyers understand the stress, fear, humiliation, anger, and worry you are experiencing, and we are prepared to stand by your side, and fight for your rights.