Sexual Harassment Defined

Although most individuals believe that sexual harassment was isolated to the era of Mad Men, recent high profile sexual harassment cases demonstrate that sexual harassment is still a rampant problem in the workplace. Regardless, employees are often afraid and embarrassed to come forward and report sexual harassment. This fear steams from a misguided belief that an employer can retaliate against an employee if he or she reports harassment. This is not true. Sexual Harassment. Although most individuals believe that sexual harassment was isolated to the era of Mad Men, recent high profile sexual harassment cases demonstrate that sexual harassment is still a rampant problem in the workplace. Regardless, employees are often afraid and embarrassed to come forward and report sexual harassment. This fear steams from a misguided belief that an employer can retaliate against an employee if he or she reports harassment. This is not true.

Currently, there are two laws to be aware of when it comes to sexual harassment in the California workplace. The two laws that govern sexual harassment is Title VII of the Civil Rights Act of 1964 and California’s Fair Employment and Housing Act (“FEHA”), otherwise known California Government Code section 12940(j). Section 12940(j) defines sexual harassment as “harassment based on sex or of a sexual nature; gender harassment; and harassment based on pregnancy, childbirth, or related medical conditions. The definition of sexual harassment includes many forms of offensive behavior, including harassment of a person of the same gender as the harasser.” The following is a partial list of different types of sexual harassment:

1. Unwanted sexual advances;
2. Offering employment benefits in exchange for sexual favors;
3. Actual or threatened retaliation;
4. Leering, making sexual gestures, or displaying sexually suggestive objections, pictures, cartoons, or posters;
5. Making or using derogatory comments, epithets, slurs, or jokes;
6. Sexual comments including graphic comments about an individual’s body, sexually degrading words used to describe an individual, or suggestive or obscene letters, notes, or invitations;
7. Physical touching, assault, as well as impeding or blocking movement; and
8. Sexual desire is not necessary.

Under both State and Federal law, an employer will be strictly liable for the actions of a supervisor’s inappropriate conduct if the supervisor is acting within the scope of his or her employment when the conduct occurred. For example, an employer can be held liable if a supervisor requests that an employee perform a sexual act for career advancement or for a better performance review. Further, an employer may also be liable for the inappropriate conduct of non-supervisors and third parties (e.g. vendors, clients) if the employer knew or should have known of the offender’s conduct and failed to take immediate and appropriate action to correct the conduct. In essence, an employee is not required to simply “take it” if a company’s client is known to regularly engage in “locker room” conversation.

Once sexual harassment is reported, an employer is required to exercise reasonable care to prevent and correct the inappropriate conduct. The Department of Fair Employment and Housing (“DFEH”) has set the following requirements that an employer must take against harassment:

1. Take all reasonable steps to prevent harassment from occurring including but not limited to developing and implementing an anti-sexual harassment company policy, with a procedure in place in how employees can file complaints and how the employer investigates the complaints;
2. Once notified of a sexual harassment complaint, inform the complainant of his/her rights and FULLY INVESTIGATE. The investigation must be thorough, objective, and complete. It should ideally be conducted by a third-party familiar with such investigations.  Anyone with information regarding the matter should be interviewed. A determination must be made and the results communicated to the complainant, to the alleged harasser and, as appropriate, to all other directly concerned;
3. Take prompt and effective corrective action if the harassment allegations are proven, the employer must take appropriate action to stop the harassment and ensure that it will not continue. The employer must also communicate the complainant that action has been taken to stop the harassment from recurring. Finally, appropriate steps must be taken to remedy the complainant’s damages;
4. Post the DFEH employment posters in the work place;
5. Distribute an information sheet on sexual harassment to all employees; and
6. Employers who conduct business in California and employee 50 or more part-time or full-time employees must provide at least two hours of sexual harassment training every two years to each supervisory employee and to all new supervisory employees within six months of their assumption of a supervisory duty.

In conclusion, although it may be frightening and embarrassing to report sexual harassment, an employee should do so with the knowledge that the State and Federal government have established protections to prevent retaliation from taking place. Therefore, victims should feel assured that if retaliation does occur, they will be able to take action against their employers.