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Sexual Harassment

Frequently Asked Questions

 

Q. What is sexual harassment?
   
A. Sexual harassment is generally defined by law as (a) quid pro quo harassment which occurs when employment is conditioned on the submission to unwelcomed sexual advances, or (b) unwelcomed sexual conduct that was severe or pervasive enough to create an abusive environment for the employee.
   
Q. Who can sue for sexual harassment in the work place?
   
A. Any person who works for a company can sue for sexual harassment.
   
Q. Does the sexual harassment have to be perpetrated by a member of the opposite sex?
   
A. No. Both male and female employees are protected by law and are protected from sexual harassment by a member of the same sex even if the perpetrator and / or victim are not homosexuals.
   
Q. Does there need to be actual touching for sexual harassment to occur?
   
A. No. Sexual harassment includes 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.

Conduct including leering looks, offensive gestures, and derogatory posters, cartoons, or drawings have been found sufficient by courts to create a hostile environment.
   
Q. Are sexual harassment cases limited to the work place?
   
A. No. The most common cases of sexual harassment arise out of employment relations. However, the California Legislative has passed laws prohibiting sexual harassment in a very wide range of business, service, and professional relationships.
   
Q. Must sexual harassment be directed at me?
   
A. Under California law, if sexual harassment permeates an employee's work environment, an employee may have a claim even if the harassing conduct is not directed at the employee personally, but occurs in the employee's presence.

Whether the harassment is directed at the employee or another person, for the plaintiff to recover damages, he or she 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 an offensive utterance, and whether the conduct reasonably interfered with the employee's work performance. Courts will generally hold that any sexual touching reaches the severe standard.
   
Q. Can I win a sexual harassment case if it is only my word against the perpetrator's?
   
A. Yes, but it is difficult to do so. Plaintiffs may prevail in "he said / she said" cases if the plaintiff is more credible than the defendant. It clearly helps if there are other witnesses to the sexual harassment or evidence that the perpetrator has harassed other employees.
   
Q. I'm afraid to report sexual harassment because I fear that I will be retaliated against or fired. What should I do?
   
A. Do not be overly concerned. California laws that protect against retaliation for reporting sexual harassment are even stronger than the laws that prevent the harassment from occurring. California 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 a second cause of action against the employer. Please note that there has been a trend in California cases for employees to receive larger verdicts for the retaliatory conduct of the employer than for the original sexual harassment.
   
Q. What do I need to do to protect my rights if I have been sexually harassed?
   
A. You should 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 procedures manual to determine the procedure for reporting sexual harassment within your company. If there is no manual, and the company has a human resources department, you should report the harassment to human resources or other designated person.

The report of the sexual harassment to the company should be in writing, detailing all of the facts.

An employee can bring a sexual harassment claim against a company while still working for the company. However, before a lawsuit is filed, 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 the choice of allowing the administrative agency to investigate the matter, or immediately obtaining a right to sue letter.

Since the statute of limitations in sexual harassment cases is not clearly defined, an employee should act quickly to consult an employment law attorney once they believe there has been sexual harassment. It is important that the administrative claim forms are completed property. An attorney can assist you with this step.
   
Q. Will my case go to trial?
   
A. Probably not. More than 90% of sexual harassment cases are settled prior to trial and many are settled without litigation.
   

 

 
 





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