Answers to the Most Frequently Asked Questions
About Sexual Harassment in California (1)©
1. What is sexual harassment?
Sexual harassment under California and Federal law is
generally defined as unwanted sexual contact of two main types:
(a) quid pro quo harassment which occurs when employment is
conditioned on the submission to unwelcome sexual advances, or
(b) unwelcome sexual conduct that was severe or pervasive enough
to create an abusive environment for the employee.
2. Who can sue for sexual harassment in the work place?
Any person who works for any company can sue for sexual
harassment.
3. Does the sexual harassment have to be perpetrated by a
member of the opposite sex?
No. Both male and female employees are protected by
California sexual harassment laws and are protected from sexual
harassment by a member of the same sex even if the perpetrator
and/or the victim are not homosexuals.
4. Does there need to be actual touching for sexual harassment
to occur?
No. Sexual harassment has been found to include a large
range of inappropriate behavior including requests for sexual
favors, unwanted sexual advances or propositions, verbal conduct,
slurs or derogatory comments and comments about a person's body,
appearance or sexual activity.
In fact, visual harassment, including leering looks,
offensive gestures or derogatory posters, cartoons or drawings
have been found sufficient to create a hostile environment.
5. Are sexual harassment cases limited to the work place?
No. The most frequent type of sexual harassment case arise
out of an employment relationship; however, California has passed
a special law which prohibits sexual harassment in a very wide
range of business, service or professional relationships.
California Civil Code section 51.9 lays out the relationships
covered.
6. Does the sexual harassment have to be directed at me and how
bad does it have to be for me to win my case?
Under California law, if sexual harassment permeates an
employee's work environment, they may have a claim even if the
harassing conduct is not directed at the employee personally, but
occurs in the employee's presence.
However, whether the harassment is directed at the employee
or someone else, for the plaintiff to be able to recover, they
must establish that the harassment was severe or pervasive. The
court will look at the frequency of the conduct; the severity of
the conduct; whether the conduct was physically threatening,
humiliating or was a mere offensive utterance; and whether the
conduct reasonably interfered with the employee's work
performance. The courts will generally hold that any sexual
touching passes the severe standard.
7. Can I win a sexual harassment case if it is only my word
against the perpetrator's?
Yes. Plaintiffs frequently prevail in "he said/she said"
cases if the plaintiff is more credible than the perpetrator,
although it does help if there are other witnesses to the sexual
harassment or evidence that the perpetrator harassed other
employees.
8. I'm scared to report the harassment because I fear that I
will be retaliated against or fired. What should I do?
Don't worry. The California law protections against
retaliation for reporting sexual harassment are even stronger
than the laws that prevent the harassment from occurring. The
law strictly prohibits an employer from retaliating against
anyone who has opposed practices of sexual harassment and/or
discrimination or has filed a complaint, testified or assisted in
any proceeding involving sexual harassment. If the employer
retaliates, the employee has yet another cause of action to sue
the employer and there has been a recent trend in California
cases for employees to receive larger verdicts for the
retaliatory conduct of the employer than for the original sexual
harassment.
9. What do I need to do to protect my rights if I have been
sexually harassed?
Generally it is wise to seek the advice of an attorney
immediately. If you want to try to work it out within your
company first, you should consult your employee handbook and
procedure manual to learn of the appropriate way to report sexual
harassment within your company. If there is no manual, and the
company has a human resource department, it is generally wise to
report the harassment to human resources, if the company has a
human resource department.
Any report of the sexual harassment to the company should be
in writing, detailing all of the acts.
An employee can bring a sexual harassment claim against a
company while they are still working for the company. Before
bringing a lawsuit, the employee must first file a claim with the
Department of Fair Employment and Housing (DFEH) or with the
Equal Employment Opportunity Commission (EEOC). The employee
then has a choice of allowing the administrative agency to
investigate or immediately obtain a right to sue letter.
Because the statute of limitations in sexual harassment
cases is not very clearly defined, an employee should move
quickly to find an attorney once they feel there has been sexual
harassment. It is important that the administrative claims are
filled out properly and an attorney can help in this regard.
10. Will my case have to go to trial?
Probably not. Over 90% of sexual harassment cases are
settled prior to trial and a significant number are settled
without litigation.
1. Most legal questions require complex answers. The answers
provided here may not be complete or fully accurate but attempt
to provide consumers with abbreviated answers. For a more
detailed answers to these questions, a consumer should check out
other articles in this section of this web site, research other
legal articles and texts on the subject matter or consult with an
attorney.
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