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Employment / Sexual Harassment

The answers specified below apply to employment in the state of California.  We hope that you find the information useful, but it should not be used in place of consultation with a qualified employment attorney.  Should you have questions, please contact an attorney.

  1. The offensive conduct wasn't actually "a sexual act" like a kiss, hug or having sex, so it doesn't count right?  Wrong.  Both California and federal law define sexual harassment as two different types.  The quid quo pro (where employment is conditioned on the unwelcome advances and hostile environment harassment).  

    Harassing behavior has been found to include conduct which includes sexual advances, sexual innuendos, requesting or inviting the employee to go on a date, asking the employee to meet them after work hours, calling the employee back into the perpetrator's office, closing the door to perpetrator's office leaving the employee in confined quarters alone with the perpetrator, verbal conduct including epithets, slurs or derogatory comments and comments about a person's body, appearance or sexual activity; physical conduct, including assault, impeding or blocking movement, or any physical interference with normal work or movement and visual harassment, including leering looks, offensive gestures or derogatory posters, cartoons or drawings. 

    Unwanted conduct of a "sexual nature" that is sufficiently severe or pervasive enough to alter the conditions of your work environment is sexual harassment.

     
  2. You can't bring a sexual harassment case against the same sex can you?  Yes you can and many are successful.  The prohibition against sex discrimination in Title VII of the Civil Rights Act of 1964 specifically protects applicants and employees, both male and female from sexual harassment. Case law has found that it is irrelevant if the person being harassed is male or female or what their sexual orientation is, but rather if the conduct is offensive and if the harasser has engaged in severe or pervasive unwelcome conduct of a sexual nature.   Sexual assault, sexual battery, stalking statutes as well as our California Constitution sex discrimination prohibitions all provide additional support for these cases, as well as females suing men.
     
  3. It is my supervisor who is doing the harassing, so I couldn't do anything about it, so I can't bring a lawsuit right?  I didn't tell anyone, because I didn't know what to do.   You still have a cause of action.  However, your damages could be limited depending on how long you've waited to report the harassment.  For example you can claim that you worked with the harasser for three years and now want three years pay, because you didn't report it for three years.  Damages in some recent cases are being determined based on how long you waited before telling someone about the harassment and what policies your employer had in place regarding harassment.  If your employer has a great sexual harassment policy and tells all of their employees the method to report harassment, then you have a duty to make a report within a reasonable period of time after the harassment occurs.  However, if it is a supervisor doing the harassment they are stictly liable.   Under the Fair Employment and Housing Act an employer is held liable if their supervisor sexually harasses one of their employees (if they knew about the conduct or not). 
     
  4. How long do I have to sue my employer after the sexually harassment occurs?  Before you can file a lawsuit, you must exhaust your administrative remedies.  To exhaust your administrative remedies you must file a complaint with either the Department of Fair Employment and Housing (DFEH) or the Economic Equal Opportunity Commission (EEOC).  Some claims require filing with either the DFEH or the EEOC within 300 days from the date of the alleged act (or sexual harassment and some claims allow one year).  You should seek legal counsel as to which statute applies to your case.  After filing with these entities, you will need to receive a "right to sue letter from them.  You do not need to wait for the agency to act, but may request a "right to sue" letter. A civil action must be filed one year after the date of the DFEH's right to sue notice.  In contrast a claimant under Title VII (EEOC) must commence an action within 90 days. 
     
  5. If I file a complaint with DFEH won't they notify my employer?  Yes.  Your employer will receive notice that you have filed a complaint.  However, it is an unlawful employment practice under the Fair Employment and Housing Act to retaliate against anyone who has opposed practices proscribed by FEHA or has filed a complaint.  The employer would be strictly liable for retaliation against the employee for filing a complaint.