Sexual Harassment Attorney

California Sexual Harassment

Harassment of any kind is never acceptable, but sexual harassment in the workplace can be especially toxic. Sexual harassment in California takes many forms and can cause real trauma. Victims often do not know how to address or fear retaliation if they report it. For some, the only two responses are either to allow it or quit. Neither of those options is acceptable. You should never have to succumb to sexual harassment to maintain your job. Likewise, you should never have to quit your job to escape sexual harassment.

At Szeto-Wong Law, our sexual harassment attorney team in San Jose, Cupertino, and the surrounding Bay Area has decades of experience and has recovered compensation for victims harmed by sexual harassment. Contact us at (650) 425-6264 to schedule a consultation today.

What Constitutes Sexual Harassment?

Sexual harassment is sex discrimination in the workplace. It occurs when an applicant or employee is harassed on the basis of their sex. This includes harassment that is sexual in nature as well as behavior that is offensive in regards to a particular sex in general.

While sexual harassment generally conjures up an image of a male harassing a female, in reality, it can also be a female harassing a male, or a person harassing another person of the same sex. Keep in mind, to be considered harassment, the behavior must be more than a simple offhand, isolated comment. Harassment occurs frequently or is so severe that it results in the victim being forced to work in an offensive or hostile work environment.

In addition, it can be considered sexual harassment when the victim is fired, demoted, or passed over for promotion as a repercussion of the harassment.

As the above suggests and according to Title VII of the Civil Rights Act of 1964, two basic types of sexual harassment exist:

1. Quid pro quo sexual harassment, which occurs when a superior or someone in a position of authority (e.g., manager or supervisor) asks for unwanted sexual favors or an inappropriate relationship in return for a promotion, pay raise, a promise not to fire, or other on-the-job benefits; or
2. Hostile work environment, which occurs when employees are allowed to make crude jokes, share pictures or content of a sexual nature, make sexual comments, or other similar behavior to co-workers, thus, creating a hostile work environment

If you live or work in California and have experienced either of these types of harassment, contact Szeto-Wong Law to learn about how you should proceed. Depending on the facts and circumstances, the next steps you take may vary, but these steps are also what may protect you and your rights as an employee in California.

Examples of Sexual Harassment

Employers and employees should be clear on what actually constitutes sexual harassment. Following are examples of what is generally considered to be sexual harassment in the workplace.

• Inappropriate touching, rubbing, or rubbing up against another person
• Inappropriate sexual gestures
• Making offensive comments about a certain sex, in general,
• Commenting on the physical appearance of others, including particular body parts and/or clothing
• Sharing inappropriate sexual media, such as pornographic photographs and videos
• Making comments regarding a person's gender or sexual orientation
• Telling inappropriate, lewd, and sexually-based jokes

Sexual harassment can take many different forms. So, if the actions of another person in the workspace create a hostile work environment by making you feel as though you are the subject of sexual harassment, get advice on how to handle it today.

Liability in Sexual Harassment Cases

Employees can be held personally liable for sexually harassing co-workers or subordinates. Employers can also be held liable. Determining when an employee or an employer (or both) are liable for sexual harassment depends on the jurisdiction and the particulars of each situation.

Is the Employer Liable for Sexual Harassment?

To start the process to uncover the answer to this question, you should ask other questions, like:

• Was the sexual harasser a person in a supervisory position to the victim?
• Did the harassment result in a hostile work environment?
• Did the employer have control over the employee committing the harassment?
• Did the employer know or should it have known about the harassment and failed to take prompt and proper corrective action?
• Did the victim suffer an employment loss, such as being fired or demoted?
• Was anyone in the company aware of the harassment, like a supervisor or someone in human resources?
• Does the employer make each employee attend training on sexual harassment?
• Are there employer policies in place to prevent sexual harassment?
• Are sexual harassment prevention policies implemented and executed?

Whether or not the employer is liable will come down to who, what, where, and when. Also, keep in mind that some states hold employers strictly liable for sexual harassment. Thus, finding fault – like the above questions are meant to do – is not necessary. This alone is the reason why you should speak to an employment law attorney in your area to make sure you know what the law is and if it applies to your case so that you can address it timely and properly.

What Should Employers Do to Prevent Sexual Harassment?

Employers must take proactive steps to ensure applicants and employees have a safe, comfortable work environment free of hostility, discrimination, and sexual harassment. They can do this by implementing preventive policies and procedures.

Education and Training

Employers should implement company-wide training to educate all employees on what constitutes sexual harassment and how to prevent it. This training should be repeated on a regular basis. It should be kept current, reflecting and incorporating legal updates on the subject.

Open communication regarding sexual harassment should be encouraged, with staff feeling as though they have an outlet to express their concerns.

Enforcement of Unambiguous Policies

Employers should also develop policies that address sexual harassment in the workplace, and make clear that it will not be tolerated. When an employee does complain about sexual harassment, their claim should be investigated and the appropriate punishment given to the harasser, if the complaint is validated.

An employer must address sexual harassment claims timely and appropriately in accordance with federal and state laws. Retaliating against an employee for reporting sexual harassment is unlawful, and action can be taken against the employer.

What Are Employee Responsibilities to Prevent Sexual Harassment?

Employers are not the only ones who need to be proactive to prevent sexual harassment. Employees must also be active and vigilant to promote a healthy, non-hostile work environment.

Employees should familiarize themselves with the employer's policies on sexual harassment and comply with the mandated rules. They should also remain aware of their surroundings to watch for harassment against themselves and others.

If an employee is sexually harassed, they should immediately confront the person, if it's safe to do so and within their means. Also, if possible, the victim should clearly state the the behavior is unacceptable and will be reported. Likewise, if an employee sees a co-worker experiencing sexual harassment, they can offer support. This support could mean helping the victim protect themselves and/or report the incident to their boss, human resources, or another person or department.

Unlike employers who must take positive and proactive steps to spread awareness and prevent sexual harassment in the workplace (through training and policies), employees are not required by law to proactively prevent sexual harassment, except to the extent they do not commit it themselves.

What Should Employees Do if Sexually Harassed in the Workplace?

When an employee feels that they are the victim of sexual harassment, they are not without recourse. A few important steps should be taken to protect your rights.

1. Keep a record. An employee who has been harassed should keep detailed records of the harassment, including where and when it happened as well as the name (or names) of the abuser(s). Detailed notes are important. If litigation occurs in the future, it is helpful to have the notes to jog memories.
2. Report the harassment. Employees should immediately report the harassment to their supervisor or a member of human resources. It is then in their hands to investigate and take appropriate action.
3. Speak to an attorney. If reporting the harassment does not resolve the issue, the employee should speak with an attorney who handles sexual harassment claims.

In sexual harassment cases, time is of the essence. There are limits on how long an employee has to file a complaint for harassment. The clock starts ticking after the last incident of discrimination. Time limits depend on state and federal claims.

• State complaints. Each state has its own statute of limitations, so if you are filing a state-based complaint, you should make sure with your attorney what the deadlines are.
• Federal complaints. If you are filing a federal complaint with the Equal Employment Opportunity Commission (EEOC), you need to file a charge within 180 calendar days from the last day the discrimination took place. This time limit can be extended to 300 days if a state or local agency enforces a law that also prohibits sexual harassment in the workplace.

Remedies for Sexual Harassment Cases

A number of remedies may be available to you if you have been the subject of sexual harassment in the workplace. Three potential and important remedies include:

1. Compensation. If you prove your sexual harassment case, you are entitled to compensation. Compensation depends on several factors, including but not limited to the presence and extent of emotional distress, loss of wages, lost professional opportunities, medical expenses (like those for psychological care), and the nature and degree of the harassment (verbal versus physical).
2. Opportunities. If you lost a job or professional opportunity, that job or opportunity could be offered or provided again.
3. Alterations. Your employer should make sure your workspace is safe. This can include anything from improved training to the removal of the harasser.