Most people know the term “sexual harassment.”
But would you recognize it if you saw it — or experienced it?
In late 2017, the #MeToo movement helped shine a spotlight on sexual harassment. All over the world, people shared their stories of sexual harassment and assault.
As the movement gained momentum, allegations brought down a string of powerful men. Companies revamped their sexual harassment policies. Lawmakers even passed new laws — including in California.
Yet sexual harassment in the workplace is still a problem. And many victims don’t come forward.
After all, you may know something doesn’t feel right . . . but how do you know if it’s illegal? And what do you do if someone is harassing you?
If you think you may be a victim of sexual harassment, this guide is here to help. Below are answers to some common questions about sexual harassment in California.
What laws protect against sexual harassment in California?
California has some of the nation’s strongest anti-harassment laws. Employees in the state are protected under the following three laws:
This is a federal law. It only applies to employers with 15 or more employees. 1
This is a California state law. Unlike Title VII, it applies to all private, state, and local government employers in California.4
FEHA expressly prohibits sexual harassment. It protects not only employees, but also unpaid interns, applicants, and independent contractors.5
This is California’s organizing law. It prohibits employment discrimination on the basis of, among other things, sex.6
In California, you can choose to pursue a sexual harassment claim under any of these laws. In most cases, FEHA provides the greatest protection. Unless noted otherwise, the law described in this guide refers to FEHA.
What is the legal definition of sexual harassment in California?
Under FEHA, “harassment” on the basis of sex is illegal. This explicitly covers:
- sexual harassment;
- gender harassment; and
- harassment based on pregnancy, childbirth, or related medical conditions. 7
But what exactly is “sexual harassment” for legal purposes? Under FEHA, sexual desire does not have to be the motive. 8Unfortunately, FEHA doesn’t otherwise any provide black and white rules. Instead, courts generally recognize two types of sexual harassment:
- quid pro quo, and
- hostile work environment. 9
These are explained below. Many cases involve both types. In either case, the behavior must be unwelcome to qualify as sexual harassment. 10
Example: Sam accompanies his boss, Amanda, to a conference. During the course of the trip, they exchange flirtatious banter. On the last night, they have dinner together, and Amanda invites Sam to her room. Sam agrees, and they begin having an affair.
They continue the affair for many months. During this time, Amanda helps Sam get a raise. Amanda later ends the affair with Sam, but they continue working together as usual.
In this case, Amanda’s advances weren’t unwelcome. So Sam probably doesn’t have a sexual harassment claim.
Keep in mind that sometimes it’s tricky to determine whether conduct is “unwelcome.” This is because the question is about someone’s subjective experience. As an example, merely giving in to the advances of a harasser doesn’t mean the conduct is “welcome.”
Quid Pro Quo Sexual Harassment
Quid pro quo is a Latin phrase meaning “something for something.” It occurs when a supervisor says — or even implies — that an employee must perform a sexual favor to either:
- gain an advantage (like a promotion or raise), 11 or
- avoid an adverse action (like a pay cut, demotion, or termination).12
But an offer or threat alone is not enough to bring a claim under FEHA. A tangible employment action (such as refusing a promotion or firing the employee) must result from the employee’s refusal. 13
Example: Mary is a sales associate at a retail store. She’s a stand-out employee and exceeds her sales targets every quarter. Her immediate supervisor gives her glowing reviews.
After six months, Mary becomes eligible for a promotion. Bill, the general manager of the store, invites Mary for drinks after work “to talk about the promotion.”
While at the meeting, Bill asks Mary to come home with him. Mary declines, but Bill says she should reconsider. He says that he needs to be “convinced” that he should promote her. Mary again refuses, and Bill later denies her promotion.
In this case, Mary probably has a sexual harassment claim. Bill’s statement implies that he won’t promote her unless she agrees to come home with him. And when she refuses, he does, in fact, deny her promotion.
Note that in a quid pro quo case, the harasser must be a supervisor.14 As an example, suppose Mary’s coworker threatened to spread rumors about her if she didn’t sleep with him. This wouldn’t support a quid pro quo claim. The coworker couldn’t take a “tangible employment action.”
And if your supervisor makes a threat, but doesn’t follow through?
You also wouldn’t have a quid pro quo claim.15 In the above example, Mary probably wouldn’t have a quid pro quo case if Bill gave Mary the promotion anyway.
Keep in mind that even if behavior isn’t illegal, it might still violate company policies. It’s a good idea to always report inappropriate behavior to your employer. This can help stop the behavior — or at least help document incidents for a hostile work environment claim.
Hostile Work Environment
A hostile work environment is a bit harder to recognize. Generally, it results from unwelcome comments or behavior that is severe and/or pervasive enough to alter the terms and conditions of your work and creates an abusive work environment. 16
Offending conduct may be visual, verbal, or physical. 17Examples include:
- displaying sexual photos, cartoons, or objects
- making sexual gestures
- using sexual epithets or slurs
- making sexual jokes or commentary
- touching or sexual horseplay
To support a claim, the offending behavior does not need to be directed at you.
Example: Tom works in a factory. Since he started, his coworkers have teased him for acting “girly.” They discuss sex in graphic detail in front of Tom and ask him what he thinks of pornographic photos of women. Tom asks them to stop, but they just laugh.
Frustrated, Tom complains to his managers several times. Each time, they tell him they’ll look into it. But the behavior continues, and his managers never reprimand his coworkers.
In this case, Tom likely has a hostile work environment claim due to the pervasive nature of his coworkers’ harassment.
When is your employer liable for sexual harassment in California?
As noted above, quid pro quo sexual harassment must involve your supervisor. This is because the harasser must be able to make decisions about your employment.
Hostile work environment harassment, on the other hand, can involve supervisors, coworkers, and even nonemployees.
The identity of your harasser will affect your employer’s legal responsibility (or “liability”).
Sexual harassment by supervisors and coworkers
If your harasser is a supervisor, your employer will be strictly liable for damages.18 It doesn’t matter if your employer was negligent or did anything wrong.
But if you’re harassed by one or more coworkers, your employer is only liable if it was negligent. This means your employer:
- knew or should have known about the harassment, and
- failed to take immediate and appropriate corrective action.19
If your employer wasn’t negligent, you’ll only be able to sue your harassers. Your employer won’t be liable.
Example: Kate is a new waitress at a restaurant. Soon after starting, her coworker David asks her out on a date. She declines. Undeterred, David continues to ask her out nearly every day. Each time she says no. He also frequently whispers lewd comments about her appearance to her. When she objects, he says they’re “just compliments.”
Katie doesn’t want to cause trouble, so she doesn’t tell anyone about David’s advances. But then David gets more aggressive. He even starts telling Katie about his sexually explicit dreams.
Katie finally reports David to her manager. Her manager investigates and terminates David.
In this case, Katie wouldn’t be able to sue her employer for sexual harassment. Her employer wasn’t negligent because they took immediate corrective action as soon as they learned about the harassment.
Sexual harassment by nonemployees
Under FEHA, sometimes employers can be liable for sexual harassment by nonemployees. Nonemployees can include clients, customers, or independent contractors.
As with coworker harassment, your employer will only be liable if it was negligent. That is, your employer:
- knew or should have known about the harassment, and
- failed to take immediate and appropriate corrective action.20
In reviewing cases involving nonemployees, California courts look at how much control your employer had over the nonemployee. They also look at any other legal responsibility your employer had over the nonemployee’s behavior.21
Example: John is a personal trainer at a high end gym. He takes on a well-known celebrity as a new client. At the end of their first session, the client asks John to accompany him in the shower. John politely declines.
Over the next few weeks, the client continues to make advances. He gropes John during sessions and calls him at all hours. When John objects, the client says he’s considering moving to another gym if he doesn’t give him a chance.
John tells his boss that the client’s behavior is making him uncomfortable. His boss tells him not to worry — he says the client has a reputation for being “handsy” and will probably lose interest after a while.
The client continues to pursue John. Fed up, John asks his boss to find another trainer for the client. His boss refuses. He says that John needs to be a team player and do whatever he can to keep the client happy.
In this case, the client’s behavior and the company’s tolerance of it likely support a claim of sexual harassment.
Can sexual harassment in California involve people of the same sex or gender?
California’s anti-harassment laws account for sexual and gender diversity in the workplace.
Men, women, and other gender identities can all be perpetrators — and victims. Sexual harassment is unlawful regardless of the genders involved.
What should you do if you think you’ve been the victim of sexual harassment in California?
If your situation involves violence or assault, contact law enforcement right away. The California Attorney General’s website includes resources for victims of sexual violence.
Otherwise, your steps should be:
- Inform your employer. Reporting sexual harassment in the workplace can be very uncomfortable. If you’re worried about this conversation, you’re not alone.
But under California law, your employer must have a written anti-harassment policy.22 This policy should tell you who should receive harassment complaints. This can at least assure you that you’re speaking to the right person.
In many cases, this will be your supervisor. Of course, if your supervisor is the harasser, you should have other options. This may be human resources, a hotline, or another designated person.
It’s important not to skip this step. First, your employer may be able to stop the harassment. Second, even if the harassment doesn’t end, reporting will help your future claims by:
- Preventing your employer from saying you didn’t follow its anti-harassment processes, and
- Allowing you to argue that your employer failed to take reasonable steps to stop the harassment.
- File an Administrative Claim. Sometimes, reporting sexual harassment to your employer doesn’t end it. In this case, your next step should be to file an administrative claim.
You can file with:
- the California Department of Fair Employment and Housing (“DFEH”);
- the Federal Equal Employment Opportunity Commission (“EEOC”); or
Most California employees file with DFEH. But if your complaint falls under both federal and state law, you can file with either agency. That agency will then investigate your complaint. It will also file your complaint with the other agency.
At this stage, it’s helpful to consult a California employment attorney. He or she can review your options and make sure you meet filing deadlines.
For DFEH, the deadline is generally one year from an occurrence of harassment (or retaliation for reporting harassment). For EEOC, the deadline is generally 180 days from the date of the last incident.
Filing on time is important because you can’t file a lawsuit (step 3 below) without a right-to-sue notice from either DFEH or EEOC. When filing an administrative claim, you can request a right-to-sue notice immediately, or wait until the investigation is complete.
- File a Harassment Lawsuit. Once you have a right-to-sue notice, you can file a lawsuit. You generally have one year from the date of a DFEH notice and 90 days from the date of an EEOC notice to file a lawsuit.
When filing a lawsuit, you’ll have to decide who you’re suing. This may be your employer and/or your harasser(s).
A California employment attorney can help you make this decision. But you should at least consider:
- Resources of the Defendant. Your employer is likely to have more money. This means it’s more likely that they can compensate you for your suffering as a result of the sexual harassment.
Legal Liability of your Employer. As described above, your employer is strictly liable for sexual harassment by a supervisor. But it will only be liable for harassment by coworkers or nonemployees if it was negligent.
Can your employer retaliate against you for a sexual harassment complaint?
If you’re still employed, you may fear your employer’s reaction to a complaint. What if they cut your hours, move you to a less desirable shift, or even fire you?
These are common concerns. But in California, retaliation against employees who complain about sexual harassment is illegal.
Most employers know this. But if your employer does retaliate, you’ll have another cause of action against it. For example, if you’re fired for your complaint, you may also pursue a wrongful termination claim.
So don’t let the fear of retaliation stop you. Reporting sexual harassment in California is your right.
Do you need a lawyer?
If you’re a victim of sexual harassment, it’s normal to feel overwhelmed.
Just remember California has powerful laws in place to protect you. You don’t have to live with an abusive situation.
In most cases, it’s better not to deal with a sexual harassment claim on your own. An experienced California employment attorney can help you:
- organize the facts of your case
- counsel you in knowing all your options
- navigate legal procedures
- craft strong legal arguments
- maximize financial damages
Questions About Your Potential Sexual Harassment Claim?
At Whitehead Employment Law, we’re committed to fighting for the rights of California employees just like you. If you believe you’re a victim of sexual harassment, call us at (949) 936-4001 or fill out a confidential case evaluation form today. Our consultations are always free.
Whitehead Employment Law is a premier firm with a wealth of legal talent dedicated to labor and employment law. We have settled and tried cases winning millions of dollars in awards for clients whose employers have violated California labor laws.
We take our cases on a contingency basis, which means we don’t get paid unless we win the case for you. We also front all the court costs and fees, and get paid our share out of the court verdict or settlement with the employer if we win the case, so you don’t pay anything out of pocket.
Contact Whitehead Employment Law today at 949-936-4001. Consultations are free and confidential.
DISCLAIMER: This article does not provide legal advice and does not establish an attorney-client relationship. If you need legal advice, please contact an attorney directly.