Sexual Harassment Frequently Asked Questions
Sexual harassment situations are very complicated. Below are a few of the frequently asked questions involving sexual harassment. Click the plus sign for more information and answers to each question. Each person’s case is unique and some of these answers may not apply in each case. You should contact our office for a consultation to discuss your particular matter.
What is sexual harassment?
Sexual Harassment takes many forms, including:
- Verbal conduct, such as derogatory comments or innuendos of a sexual nature;
- Physical harassment, such as touching of a sexual nature;
- Visual forms of harassment, such as showing pornography;
- Requests for sexual activity, such as unwanted sexual advances or placing conditions for employment for sexual exchange.
Sexual harassment generally occurs in two forms. The first type is called “quid pro quo”, where obtaining, keeping, or advancing in a job is conditioned on submission to a supervisor’s sexual advances, or where the harassment results in some other adverse employment action. The second type of harassment is harassment which creates a “hostile work environment.” This is usually unwelcome conduct of a sexual nature which unreasonably interferes with work that creates intimidating, hostile and offensive work conditions.
Must sexual harassment be “sexual” in nature?
No. Any harassment directed at an employee because of their gender is illegal. Hostile environment sexual harassment does not need to include a demand for sex in exchange for a job benefit or obvious sexual connotations such as sexual jokes, touching, etc. It is simply the creation of an uncomfortable environment based upon the victim’s gender.
Is the employer liable for the acts of its supervisors?
In most cases, yes. The supervisor usually acts as the employer’s agent. However, the employer can sometimes limit their liability for damages by taking prompt and effective action upon learning of the sexual harassment in cases where the employee has not suffered an adverse job action, and where the employee unreasonably failed to report the harassment or take advantage of the corrective opportunities offered by the employer.
What if it is a co-worker who sexually harasses?
Generally a co-worker is not considered the employer’s agent. In these cases, the employer is usually liable only if they knew of the conduct and let it continue. The co-worker who harasses can also be sued for their harassment.
Should the harassment be reported to the employer?
In most cases, yes. Most employers have a “sexual harassment policy” requiring harassment be reported. These policies are required by law to be posted in the workplace and are usually given to the employee when they are hired. Harassment complaints should always be done in writing, with the employee saving a copy.
If an employee unreasonably fails to report harassment, and allows the harassment to continue, then the employee’s damages may be limited. There are certain situations though, where it might be impractical to report harassment, such as where the harasser is the head of the company or where the company is small.
What if the harasser is the head of the company?
Then it may be difficult to report the harassment. The employee should seek an attorney immediately for advice. Complaining to the “company” in these situations, is essentially complaining to the same person who is the harasser, and is usually pointless. The employee is thus faced with the decision of continuing to be harassed, or quitting. However, from a practical aspect, the prospect of continued employment is doomed, because the victim will never trust the employer. An employee in such a situation should not quit before consulting with a qualified labor law attorney.
If the employee is being harassed, should they quit their job?
Not before consulting with an attorney. In these cases, quitting the job may be considered a “constructive termination”, because it is the same as being forced to quit. However, the legal standards are complicated and unless certain conditions are met, the employee may not be able to obtain lost wages in a subsequent lawsuit. Additionally, if the employee quits, they may not receive their unemployment benefits.
What is the employer required to do when harassment is reported?
The employer must immediately take whatever steps are reasonable to promptly punish the harasser and prevent harassment from occurring in the future. This will require the employer to conduct a prompt, fair and thorough investigation. The employer must take the complaint seriously and maintain confidentiality to the extent possible. During the investigation, the harasser and the victim should be separated to prevent retaliation, even if it means giving the parties paid time off. Depending upon the severity and the circumstances, the harasser must be reprimanded, suspended or terminated. In most cases, the employer will be required to terminate the harasser, because the harasser may do it again to the same victim or another person. In many cases, the employer must take remedial steps to assist the victim to recover for physical or emotional injuries. This is usually done through a workers’ compensation claim.
What if the employer retaliates?
The employer is prohibited by law from retaliating. As a rule, the company itself will not retaliate or condone such conduct. However, its’ individual supervisors and friends of the harasser may. The retaliation may be subtle, such as cold shoulders or avoidance, or may be obvious, such as sudden changes in work schedules, reduced hours, pay cuts, verbal assaults or termination. If the employee is retaliated against, the employee should follow the same procedure they used to report the harassment. If this would be fruitless, or the employee is uncomfortable because the person to report the retaliation to is the same person retaliating, the employee should contact this office, the California Department of Fair Employment and Housing (DFEH) or the EEOC.
How can an employer prevent sexual harassment?
One of the best ways to prevent harassment is by educating all employees, supervisors and managers what their rights and obligations are. This is usually done by properly distributing the written sexual harassment policy, having frequent training for employees, regularly providing employee evaluations, having open door policies, and other pro-active programs. Most sexual harassment occurs over a long period of time. Like random crime, their is no way for an employer to be 100% sure that one of its’ supervisors will not sexually harass a subordinate. However, if everyone knows the employer doesn’t tolerate such conduct and the employees feel safe about reporting it, and the company is responsive, then whatever episodes of harassment occur will usually be minimized and of shorter duration.
Does the harassment need to be reported to the government?
Usually. An employee can obtain relief or damages through the government administrative process, or by private lawsuit. Both the California Department of Fair Employment and Housing (DFEH) and the U.S. Equal Employment Opportunity Commission (EEOC) have investors. If the employee wants to bring a lawsuit for sexual harassment, they must file with one or both of these agencies, within specific time limits, and obtain a “Right to Sue” letter. These agencies can typically take many months to process complaints. However, attorneys usually use an expedited procedure for cases to file suit immediately, and can usually obtain the Right to Sue letter in a matter of weeks.
What kind of damages are available to victims?
Generally, a victim may recovery lost wages, medical expenses, emotional distress, costs of counseling and any other out-of pocket expenses. The employee may also recover “general damages”, punitive damages, and attorneys fees.
Are their any time limitations on taking legal action?
Yes. To file a sexual harassment case in State Court, the employee must usually do so within one year from the harassment, or one year from the time the Right to Sue letter is issued by the Department of Fair Employment and Housing in connection with any administrative Complaint filed. For federal court cases, the Complaint must be filed with the appropriate Federal District Court within ninety (90) days of receipt of the Right to Sue Letter issued by the Equal Employment Opportunity Commission (EEOC). However, if the action is brought against a government agency or public entity, shorter time limitations may apply, such a six (6) months. In these cases, the employee may need to file a “tort claim” with the public entity.
For more information or for a free case evaluation call 1-877-219-8481