Sexual harassment is prohibited under both federal and state laws.
On the federal level, Title VII of the Civil Rights Act of 1964 defines sexual harassment as unwanted sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when this conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance, or creates a hostile or offensive work environment.
In California, the Fair Employment and Housing Act (FEHA) expands on these definitions and has been interpreted to include various types of sexual harassment. These types range from verbal harassment to physical assaults.
What Are Examples of Conduct That Would Not Be Considered Sexual Harassment?
Not every inappropriate action or comment qualifies as sexual harassment. Casual compliments, benign workplace interactions, or mutual romantic interests typically don’t constitute sexual harassment unless they become pervasive, persistent, or unwanted.
The key is the nature and frequency of the behavior and whether it creates an intimidating, hostile, or offensive workplace environment.
What Are the Elements of a Sexual Harassment Claim?
For a successful sexual harassment claim:
The Victim Must Be an Employee or Job Applicant
In the realm of workplace sexual harassment, the claim’s validity often hinges on the relationship of the victim to the organization. Specifically, the individual claiming harassment should either be a current employee or someone who has applied for a position (a job applicant). This ensures that the claim is directly related to a professional context.
Temporary workers, interns, and even some volunteers might be covered, depending on specific circumstances and state laws. Individuals outside of these categories, like casual visitors or independent contractors, might find it more challenging to lodge a valid harassment claim, although each situation is unique.
The Harassment Was Based on the Victim’s Sex or Gender
Sexual harassment claims are inherently tied to actions that are based on the victim’s sex, gender, gender identity, or even sexual orientation. This means that the inappropriate behavior, comments, or advances were made because of these characteristics.
It isn’t limited to male-to-female or female-to-male incidents; same-sex harassment is also recognized and condemned by the law. Furthermore, harassment due to non-conformity with gender norms or stereotypes also falls under this umbrella.
The Conduct Was Unwelcome
For behavior to qualify as sexual harassment, it must be unwelcome. It’s the perception of the recipient, not the intent of the perpetrator, that determines the “unwelcomeness.” Even if actions or comments were meant as “jokes” or “compliments,” if the recipient found them offensive or unwanted, they could constitute harassment. Documentation of incidents, especially any attempts to ask the harasser to stop, can be valuable evidence of the unwelcomeness of the conduct.
The Harassment Was Severe or Pervasive Enough to Create a Hostile Work Environment
Isolated incidents, unless extremely severe, might not be enough to establish a hostile work environment. The behavior becomes actionable when it is so severe or pervasive that it alters the conditions of the victim’s employment and creates an abusive working environment. Courts often look at the frequency, severity, and nature of the conduct.
For instance, a one-time touch might not be seen as creating a hostile environment. However, constant and unsolicited comments about a person’s appearance might.
An Employer, Supervisor, Co-Worker, or Non-Employee Can Be the Harasser
While it’s common to think of harassers as being supervisors or those in a position of power, the law recognizes that harassment can come from various sources. Co-workers, regardless of their rank or position, can be harassers.
Additionally, even non-employees, such as vendors, clients, or customers, can perpetrate harassment. Employers have a duty to address harassment issues, even if they originate from outside their direct workforce. This is especially true if they are aware of it and fail to take corrective action.
What Evidence Is Needed in a Sexual Harassment Case?
Collecting evidence is vital in proving a sexual harassment claim. This can include:
Direct Evidence: Emails, Texts, Photos, or Videos
Direct evidence, such as emails, texts, photos, or videos, can be some of the most powerful pieces of evidence in a sexual harassment claim. These tangible forms of evidence provide a clear, often indisputable record of inappropriate behavior. Emails or texts can showcase explicit messages or even admissions of guilt by the harasser.
Photos or videos, on the other hand, can offer visual proof of the misconduct. In our digital age, where most communications are stored electronically, preserving and accessing such evidence has become relatively easier. However, victims should ensure they store these pieces of evidence securely and consider making backups to prevent any accidental loss.
Witnesses: Colleagues Who Saw the Incidents
Witness testimonies can play a pivotal role in strengthening a sexual harassment case. Colleagues who directly observed the misconduct or to whom the victim confided shortly after the incident can validate the victim’s claims. Their statements can provide an unbiased perspective of the events and establish patterns of behavior by the harasser.
It’s also worth noting that the credibility of witnesses can be assessed, and those with no vested interest in the case’s outcome often carry significant weight.
Detailed Records: Maintaining a Journal
For victims, maintaining a detailed record or journal of each incident can be instrumental. This record should capture specifics such as date, time, location, individuals involved, and a description of what transpired. Such documentation can help pinpoint patterns of harassment and demonstrate the severity or frequency of the misconduct.
Be as accurate and timely as possible when noting down these incidents, as memories can fade or details might get overlooked with time.
Personnel Files: Potential Past Complaints
Personnel files of the alleged harasser can be a treasure trove of information. They may contain prior complaints, reprimands, or notes about similar misconduct, showcasing a history or pattern of inappropriate behavior.
While accessing these files might require legal procedures or formal requests, they can be valuable. A history of complaints can bolster the victim’s case, suggesting that the behavior wasn’t just an isolated incident but part of a larger, problematic pattern.
What Can California Employers Do to Prevent Sexual Harassment?
Employers have a responsibility to create a safe workplace. They can:
- Provide regular training: The California Department of Fair Employment and Housing offers guidelines and resources.
- Develop clear policies: These should be in the employee handbook and reiterated during meetings.
- Encourage reporting: Ensure multiple avenues are available for complaints.
- Act promptly: When complaints arise, they should be investigated immediately and impartially.
- Offer protection: Ensure victims and witnesses are protected from retaliation.
What Should You Do if You Have Been Sexually Harassed in California?
If you have been sexually harassed in California:
- Speak up: Inform the harasser that their behavior is unwelcome.
- Document everything: Keep a record of incidents.
- Report: Inform your supervisor, HR, or designated individual within the organization.
- Seek external help: File a complaint with the California Department of Fair Employment and Housing or the federal Equal Employment Opportunity Commission.
Do You Need An Attorney for Your Sexual Harassment Issue?
Facing sexual harassment can be scary, but you don’t have to handle it alone. A knowledgeable attorney can guide you through the process, ensure your rights are protected, and help you get the justice you deserve.
If you’re dealing with sexual harassment issues in California, consider contacting a lawyer. Let LegalMatch help you find the right California sexual harassment lawyer to address your concerns and advocate on your behalf.