When I first started practicing law, I was asked by a fitness-conscious employer whether he could require his employees to quit smoking. After some research into the Americans with Disabilities Act, I concluded, "no." Basically, I concluded that smoking interferes...
Sexual harassment claims against your company can result in negative publicity, enormous fines, time-consuming and expensive litigation, lowered employee morale, and reduced productivity in the workplace. If your business is facing sexual harassment allegations by a current or former employee, you need immediate legal support from a knowledgeable and experienced employment law lawyer, such as those of Bellatrix PC.
Whether you are already facing a legal claim, or are simply concerned about compliance with FEHA and Title VII requirements, our attorneys are prepared to assist you. We can represent and defend your business in civil litigation proceedings, or review and revise your current policies and procedures with our business risk review. To arrange a private consultation, call our business attorneys right away at (800) 889-8376. We work with partnerships, corporations, and LLCs.
Examples of What Constitutes Sexual Harassment
Sexual harassment has a much broader definition that most people initially realize. In fact, the passage of SB 292 in 2013 amended and expanded California’s former definition by providing that workplace conduct need not be motivated by sexual desire in order to be considered sexual harassment.
In order to avoid facing harassment allegations, employers must familiarize themselves with the type of conduct which is prohibited by law. Employers must also:
- Include sexual harassment provisions in their employment handbooks, e.g. explanations of prohibited behavior. Sexual harassment policies are mandatory.
- Put up anti-harassment posters supplied by the Department of Fair Employment and Housing.
- Consider promoting a sexual harassment prevention program at the workplace, which may help to limit liability in certain situations.
Note that if an employer has 50 or more employees, he or she is further required to “provide at least two hours of classroom or other effective interactive training and education regarding sexual harassment to all supervisory employees who are employed as of July 1, 2005, and to all new supervisory employees within six months of assuming a supervisory position.”
Some common examples of sexual harassment include, but are not limited to, the following:
- Any unwanted physical contact. This includes, but is not limited to, pushing, touching, slapping, or pinching employees. It also includes blocking doorways or otherwise preventing employees from moving freely without having to make physical contact.
- Visual acts, such as making inappropriate hand gestures, showing a co-worker sexual materials, or staring at an employee’s body.
- Verbal expressions, including jokes, threats, slurs, unwanted advances, and other crude or sexual language.
- Offering an employee a raise, promotion, etc. in exchange for sexual favors. Conversely, threatening to demote or terminate an employee who withholds sexual favors is also sexual harassment.
Are California Employers Liable for Sexual Harassment in the Workplace?
While sexual harassment may be the act of an individual employee, employers can nonetheless assume liability. This can apply even in cases where the employer was unaware that harassment was occurring or did occur. However, employers may not be liable in cases where all of the following statements apply:
- The alleged harasser was not a management-level employee.
- This applies regardless of the plaintiff’s position at the company.
- The employer was unaware that any harassment was occurring or did occur.
- The employer must “take immediate and appropriate corrective action to stop the harassment” as soon as he or she becomes aware that harassment is a problem.
- If an employer is aware that an unsafe work environment exists, yet fails to take reasonable measures to correct the problem as provided by Government Code § 12940(k), that employer could potentially be targeted by a lawsuit alleging negligent hiring or negligent retention.
- The company had an active program to prevent sexual harassment from occurring.
Employers must be made aware that harassment claims need not involve financial damages to the plaintiff in order to be successful. As stated by the California Department of Fair Employment and Housing, “A victim may be entitled to monetary damages even though no employment opportunity has been denied and there is no actual loss of pay or benefits.”
Harassment is expressly prohibited by both state and federal law: Title VII of the Civil Right Act of 1964 and the California Fair Employment and Housing Act (FEHA), respectively. Title VII generally applies to employers with at least 15 employees, whereas FEHA applies to employers with at least five employees. Therefore, a company which escapes Title VII provisions may still be subject to FEHA, which furthermore applies to independent contractors. Employers are subject to maximum fines of $150,000 in cases where the Fair Employment and Housing Commission determines that harassment occurred.
What About Liability for Non-Employees?
Sexual harassment laws also extend to non-employees. For example, an employer could potentially be held liable if one of his or her clients or customers harasses an employee. In order for the employer to escape liability in this type of situation, two conditions would have to be in place:
- The employer would have to immediately intervene as soon as he or she learned that harassment was occurring or had occurred.
- The harasser must not have been in a position of authority over the victim.
Note that employers can also be held liable for harassment to job applicants and interviewees who are not actually employees of the company.
Finally, it is worth addressing the common misconception that only men are guilty of sexual harassment, and that only women are victimized. From a legal standpoint, gender has no bearing on harassment claims – only the conduct which occurred. Persons of either gender can be victims or harassers.
If a former employee has filed a sexual harassment claim against your business, you need an aggressive and experienced legal team to defend your company in court. To set up a confidential legal consultation, call the business law attorneys of Bellatrix PC at (800) 889-8376.