In California, employees are protected from sexual harassment in the workplace by the Fair Employment and Housing Act (“FEHA”) (Labor Code secs. 12900 -12996.) There are various types of sexual harassment. It usually includes either
– Unwanted sexual advances, or
– Visual, verbal or physical conduct of a sexual nature.
Visual sexual harassment can include things like sexually suggestive posters in the workplace, or sexual gestures. Verbal sexual harassment can include things like some one telling dirty jokes or commenting on a person’s looks. Physical conduct can include any unwanted touching or impeding / blocking a person’s movement.
Sexual harassment that involves unwanted sexual advances is usually classified as “quid pro quo” sexual harassment, wherein job benefits are conditioned on sexual compliance (i.e., go on a date with the boss to avoid termination or to obtain a promotion). Sexual conduct that does not involve sexual advances is generally referred to as “hostile work environment” sexual harassment, and is generally actionable if the sexual conduct (visual, verbal, physical, etc.) is offensive and either (1) severe or (2) pervasive. Thus, a single severe incident of offensive sexual conduct will support a sexual harassment claim, or multiple minor incidents can support a sexual harassment claim.
If sexual harassment includes some form of offensive touching, or apprehension of touching, it may also constitute sexual assault or sexual battery, which may have additional civil liability and may also impose criminal liability on the perpetrator. (Note, California Labor Code section 230(f) also requires employers to reasonably accommodate an employee who has suffered any physical or mental illness due to a sexual assault or stalking, even if the perpetrator was not an employee).
Effective January 1, 2021, employers with at least five employees must provide at least two hours of classroom or other effective interactive training and education regarding sexual harassment to all supervisory employees every two years, and mustt provide at least one hour of classroom or other effective interactive training and education regarding sexual harassment to all nonsupervisory employees in California within six months of their assumption of a position. Failure to provide this training will not automatically make the employer liable for sexual harassment, but it will make the employer look bad and should make a sexual harassment claim stronger. Thus, we will always investigate such compliance when we prosecute a sexual harassment case.
For sexual harassment, the victim can sue both the individual perpetrator as well as the employer. The employer is strictly liable for harassment by an employee who supervised or managed the victim. However, if the harassment is by a co-worker who has no authority over the victim, then the victim may need to prove that the employer had prior notice that the perpetrator posed a risk of harassment to employees, usually by showing there have been one or more former complaints of sexual harassment against the same employee. Alternatively, the employer can sometimes be held liable for harassment by an employee if the employer is found to have implicitly or expressly authorized (in advance) or adopted/ratified (after the fact) the sexual misconduct. An employer may be found to have implicitly ratified an employees sexual harassment of a co-worker if the employer tries to cover up the incident, fails to take appropriate remedial action, or otherwise acts in a way inconsistent with reasonably addressing the harassment.
Remedies for sexual harassment can include compensation for any economic harm (e.g., lost income, medical expenses, therapy expenses, etc.), as well as general damages for any mental anguish, emotional distress, or other pain and suffering. In addition, punitive damages are available if the additional elements of Cal. Civil Code sec. 3294 can be proven. In some cases, equitable relief, including an injunction, can be granted. In general, the prevailing plaintiff can recover an award of attorney fees and legal costs as well. Finally, post-judgment interest (and, in some cases, pre-judgment interest) can also be awarded where appropriate.
While the above discussion focuses on sexual harassment under FEHA, the protection from hostile work environment harassment also applies to offensive visual, verbal or physical harassment related to other protected characteristics (e.g., race, disability, age, religion, sexual orientation, etc.) Thus, if a person is subjected to racist jokes in the workplace, and the misconduct is severe or pervasive, that person can sue for hostile work harassment related to race.
Outside of the employment context, California law also prohibits sexual harassment in professional business relationships where one side seems to have power over the other side, such as in a student-teacher relationship, doctor-patient relationship, lawyer-client relationship, banker-customer relationship, etc. (See, e.g., Cal. Civil Code sec. 51.9.)
Lastly, while this article primarily focuses on California’s FEHA laws pertaining to sexual harassment, federal law also prohibits sexual harassment and affords similar protections to employees. While the laws are not identical, in general they are very similar in their scope. In most cases, we find it is strategically better to pursue claims under FEHA than under the equivalent federal laws, thus this article focuses primarily on FEHA. However, some employees may need to rely on federal protections (e.g., federal employees) and, in general, those will be similar if not identical to what is outlined above.
If you feel you have suffered illegal sexual harassment, or any form of illegal workplace harassment, discrimination or retaliation, call an employment attorney. Currently, there is a three year statute of limitations (time to file) for a sexual harassment claim under FEHA, and a claim can be lost if the victim waits to long to sue.