If accomplished by offensive acts, sexual harassment could be deemed a criminal matter. Sexual harassment is still a widespread problem in workplaces in the United States, despite success in raising awareness of this act and changes in the law in many states to address it more effectively. Sexual harassment is against the law because it violates federal and state civil laws. However, many people question the criminal nature of sexual harassment. It is a debatable topic because not all sexual harassment acts are crimes.
The courts in California have refined what amounts to harassment in countless lawsuits. The Fair Employment and Housing Act (FEHA) is the primary law dealing with sexual harassment in California. This statute is explained in the California Government Code 12940. However, the statute was heavily revised in 2018 with the passage of SB 1300.
The Crime Of Sexual Harassment In The Work Place Explained
Some sexually harassing conduct is criminal, although sexual harassment itself is not a crime. Numerous actions qualify to be sexual harassment. However, some of these actions do not violate criminal laws. For instance, in most cases, it is not an offense to show adults photographs on one's computer, even if other people would view this as offensive conduct and sexual harassment. However, if the same person assaults a co-worker physically, it would be not only sexual harassment but also an offense.
The two primary forms of sexual harassment that the California State law prohibits are:
- A hostile work environment where conduct or comments are severe or pervasive, and unwelcome sexual advances that could alter the work environment
- Quid pro quo sexual harassment where a supervisor demands sexual favors to provide workplace benefits
In California, some acts are regarded as crimes of sexual harassment. These acts include:
Some criminal codes of law prohibit bullying in California. Under anti-bullying laws in California, certain types of sexual harassment do exist. For instance, if someone posts comments that are sexually offensive about you on your social media page, when he/she knows that your co-workers view the page, they could face sexual harassment charges. In a situation where your employer leverages sexual favors from you with the threat of adverse job action, that act is also against anti-bullying laws. It is also bullying and sexual harassment if a male supervisor writes up a female subordinate for refusing to go out with him.
Often, offensive visuals form part of sexual harassment in the workplace. The perpetrator could violate child pornography criminal laws if the visuals include child pornography.
Battery And Assault
A deliberate physical threat or offensive physical contact encompasses sexual harassment. It could also attract charges under the state's battery or assault criminal laws.
Under California criminal laws, a person could face charges for stalking if he/she follows someone else home. You could also face charges if you wait for the victim in the company parking lot, troll them on social media, or engage in other stalking behavior.
In some serious sexual assaults and sexual harassment incidents, the perpetrator could also turn out to be a rapist. In this case, the assailant could face a criminal charge of rape, and the assailant's employer could face a sexual harassment lawsuit.
The perpetrator of this type of crime could restrain the victim's freedom of movement either with threats or with physical force. According to criminal law prohibiting false imprisonment, it is a crime to restrain another person's freedom of movement.
Definition Of Sexual Harassment In The Workplace
Generally, victims of sexual harassment could be both men and women. Typically, the definition of sexual harassment could refer to:
- Any act that creates an offensive or hostile work environment
- Unwelcome conduct
- Adverse job action against the victim
- Any act directed toward the victim’s gender or of a sexual nature
Offensive Or Hostile Work Environment
Unfriendly conduct has to go beyond a particular level to qualify as sexual harassment. For example, it could be offensive visuals, requests for dates, physical assault, and a constant barrage of commentary. Under California law, a minor incident like a dirty joke during lunch would not be regarded as sexual harassment. However, under sexual harassment law, a workplace where offensive visuals are allowed could be a hostile working environment. Therefore, conduct ranging from sexual assault by a co-worker to cheesecake calendar photos in the office form part of sexual harassment.
As in the case of sexual assault, consent is not necessarily a defense to sexual harassment. A victim would not resist sexual conduct, given the power dynamics between the harasser and the victim. A victim will even consent to sexual behavior for fear of losing the job or other consequences if they object.
A victim would experience sexual harassment even if he/she grit their teeth and resist yielding to their manager’s constant sexual comments. Sexual harassment could also occur even if a victim consents. However, this conduct would be unwelcome to the victim. A victim who whole-heartedly engages in sexual banter with their bosses could fail to recognize that the conduct was unwelcome as stipulated under sexual harassment law.
Adverse Job Action Against The Victim
Some people in the workplace or a supervisor could take adverse actions against a staff member. The measures could range from job termination to a bad performance review. These actions often happen if a staff member objects or resists sexual harassment. A typical example could be a female employee whose job is terminated for refusing to yield to her manager’s sexual demands.
Directed Toward The Victim’s Gender
If the conduct is directed to an employee because of their gender or is sexual in nature, it would encompass sexual harassment. The behavior need not be motivated by the harasser’s sexual desires. The conduct does not have to be explicitly sexual.
The Common Perpetrators Of Sexual Harassment In The Workplace
A variety of people could be perpetrators of sexual harassment in their place of work. Some of these people could include:
- Independent contractors
- Supervisors or bosses
- Company owners
Third Parties (Vendors Or Independent Contractors)
Individuals who are not colleagues in the company could sexually harass a victim in the workplace. These individuals are known as third parties, and they include customers, independent contractors, clients, and other employees who often visit a company like messengers.
An employer could be responsible for sexual harassment perpetrated by a third party. However, the victim must prove that the employer failed to take immediate appropriate corrective action. The victim also has to provide sufficient evidence that their employer knew or should have known about the harassment. The corrective actions an employer could take include:
- Kicking an abusive customer out of the store
- Reassigning the employee off of a project that needs interaction with a known harasser
- Ending a business relationship with a harassing customer
In the case of third-party sexual harassment in the workplace, the extent of an employer's control matters. An employer is more likely to be held responsible in this case if it would have been easy for them to prevent the harassment. A victim could also pursue the third party in a lawsuit if he/she cannot hold their employer responsible.
These are colleagues in the company where the victim works. However, these individuals do not have authority over each other as supervisors do. As a result, co-workers can rarely commit quid pro quo sexual harassment because of a lack of control or apparent leverage. Nevertheless, they could be liable for creating a hostile workplace.
An employer could only be responsible for the damages due to negligence when co-workers are responsible for sexually harassing behavior.
An employer could only be negligent for sexually harassing behavior if he/she failed to take appropriate corrective action. He/she could also be negligent for the conduct if he/she knew of it or should have known of the act.
An employer would not be held responsible for the sexual harassment if he/she were not negligent. However, a victim of sexual harassment is legally allowed to pursue the perpetrators to pay for their actions.
A member of the same gender could sexually harass a victim in the workplace. In California, sexual orientation harassment too could be grounds for a lawsuit. Sexual harassment in California deals with the gender and complexities of sexual identities in the workplace today. This is because times have changed. It is not only about a male supervisor demanding a sexual affair from a female employee. Sexual harassment could involve people of the same gender.
Supervisors Or Bosses
Often, a person facing sexual harassment could experience this problem from the supervisors or bosses, like a co-worker. The only difference is that the supervisors or bosses have decision-making authority over the individual facing sexual harassment. Supervisors or bosses are often perpetrators of quid pro quo sexual harassment. Even if it is only apparent leverage, these individuals can pressure the employee into a sexual favor. The conduct of a supervisor could contribute to a hostile working environment. A non-supervisor’s conduct is different from sexually harassing behavior by a boss.
The damages won in a harassment lawsuit are strictly the employer's responsibility. Even if the employer were not deficient or negligent in any way, they would be held responsible.
Reporting Sexual Harassment
Under the law in California, sexual harassment is a behavior that creates an offensive and intimidating working environment. The law encourages every employee to learn how to protect themselves against sexual harassment in the workplace. Under Federal law, Title VII of the Civil Rights Act prohibits harassment at workplaces. Victims who suffer sexual harassment in the workplace could do the following to protect themselves:
Complain To Supervisors
Victims should escalate their complaints within the company if confronting the harasser does not end the harassment. The Supreme Court in the U.S does not allow lawsuits from employees who do not use the employer's internal procedure to make their employers aware of the harassment. Therefore, if a victim fails to complain within the company first, he/she is likely to lose in court.
Launch A Complaint To Government Agencies Before Filing A Lawsuit
The first step a victim should take is to report the harassment to the employer. However, if complaining to the employer does not help, a victim could approach the Federal agency that enforces Title VII of the Civil Rights Act. He/she could file a civil lawsuit for damages under Title VII if investigations and settlement attempts fail to bear fruits.
Launch A Complaint To EEOC Before Filing A Federal Lawsuit
At times, a victim should file a claim with a government agency even if they intend to file a lawsuit. For instance, if a victim pursues a claim under federal law, they must first file a claim with EEOC (Equal Employment Opportunity Commission). Then, the agency would issue the victim with a right-to-sue letter, permitting them to launch their case in court.
Document The Claim
Every victim of sexual harassment must write what is happening to them and how they are doing to stop the behavior. This is crucial if the victim would be required to prove their case to a jury, a government agency, or a company investigator. Therefore, victims should collect as sufficient and comprehensive evidence as possible about sexual harassment behavior.
If a victim receives any photographs, notes, cards, or offensive letters, they are advised to save them. In addition, victims should document a detailed journal regarding sexual harassment incidents, including what happened, when, where it took place, and the names of everyone involved.
The Role Of An Attorney In A Sexual Harassment Lawsuit
For the victims of sexual harassment in the workplace, an attorney comes in handy to file a civil lawsuit on their behalf. In California, any person who suffers sexual harassment in the workplace is eligible for a claim. The California law protects the following individuals from sexual harassment:
- People providing services under a contract
- Unpaid interns, and
- Job applicants
Damages Available From A Sexual Harassment In The Workplace Lawsuit
Victims could recover compensatory damages in California upon facing sexual harassment in the workplace. The damages could include:
- Pain and suffering
- Loss of reputation
- Back pay
- Mental anguish
- Front pay
Additionally, at the discretion of the court, parties that prevail in claims of sexually harassing behavior could be awarded expenses like:
- Court costs
- Expert witness fees
- Attorney’s fees
- Punitive damages (in some cases)
If an employee loses a sexual harassment lawsuit against their employer, they will pay the employer the damages. However, the Amendments made to the law recently in California have put limits on when employers could recover the damages. As a result, it is only if the claim is frivolous that the court could award the employer the damages.
On the other hand, a gag provision cannot be included in the settlement agreement if the case is settled. The court does not enforce any payment of the settlement that prohibits the disclosure of information about the harassment. This new law only went into effect on January 1, 2019.
Statute Of Limitations For Sexual Harassment In The Workplace
Lawsuits for sexually harassing behavior have to be filed before the expiration of the statute of limitations. An administrative filing has to be made first because these claims involve behaviors in the workplace. The administrative filing must go through the following:
- The California Department of Fair Employment and Housing (DFEH), and
- The Federal Equal Employment Opportunity Commission (EEOC)
Generally, the filings of DFEH must be done within three years of the most apparent sexual harassment incident. However, victims could have a 90-day extension to file DFEH if they learn of the behavior after the three years have expired.
Under federal laws, the filing of EEOC must be done within 180 days of the most apparent incident of sexually harassing behavior. If a claim is also being filed with the DFEH, this window could be extended to 300 days. The DFEH or EEOC would reply by either:
- Issuing a right to sue letter that permits the victim to go on with the case, or
- Conducting investigations about sexual harassment behavior — The victim would have one year to file a lawsuit once they receive a right to sue letter.
It is important to note that, according to Fair Employment and Housing Act (FEHA), employers with five or more employees should provide sexual harassment training. Therefore, employers would be in a weaker position should an employee sue them later for failing to meet training requirements and provide training courses. The lawsuit could mean the employer failed to take reasonable steps towards curbing the offensive behavior.
Find A Los Angeles Criminal Defense Attorney Near Me
If you face charges for sexual harassment in the workplace, the consequences could be detrimental. You should contact a competent attorney to help you fight the charges. An attorney who handles sexual harassment cases would give you advice and assist you in understanding the legal options to take. At The Los Angeles Criminal Defense Attorney, we are committed to helping people facing sexual harassment create solid defenses to fight their charges. Call us at 310-564-2605 and speak to one of our attorneys.