MAY IS SEXUAL HARASSMENT AWARENESS MONTH

Question: My coworkers and I are friendly at work. They tell me about their sex lives, and I don’t like it. Is that sexual harassment?

Answer: It really depends on the situation, but it’s unlikely. To prove a hostile work environment sexual harassment claim, the employee must have been subject to unwanted harassing conduct, and that conduct must be so severe, widespread or persistent that a reasonable person in the employee’s circumstances would have considered the work environment to be hostile or abusive. Also, the employee herself must consider the work environment to be hostile. Among some of the factors used to determine severity and pervasiveness of the facts are: the nature of the unwelcome acts; how often and over what period of time did the acts occur; and the circumstances under which the acts occurred.

There are several variables that might make this a potential sexual harassment claim. If you have informed your boss or supervisor that you do not want your coworkers talking to you about their sex life, and they continue to do it multiple times a day to the point that you feel the environment is hostile, then it’s possible that you might have a claim. Or if the coworker talking about their sex life is your boss or supervisor, and it rises to the level of pervasive, you may also have a claim. If this is not the case, I would suggest advising your coworkers that you do not want them to talk to you about their sex lives, and then if they continue, report it to your supervisor or HR. Be sure to keep a record of any time you complain about the harassment, and try to put your complaints in writing so you have your own log.

Question: My boss has been sexually harassing me. I reported it to HR. HR conducted an investigation, and he was cleared of any wrongdoing. What can I do now?

Answer: You have a right to work without being sexually harassed. If you have been sexually harassed by your boss, and it rises to the level of a legally actionable claim, then you have the right to take legal action against your employer. Even if Human Resources has investigated and found that there was no wrongdoing, it does not eliminate your legal rights to pursue your case. I would suggest that you contact our Strong Advocates staff promptly to further discuss your legal rights and options.

Question: My employer fired me after I complained to him about being sexually harassed in the workplace by a coworker. What should I do?

Answer: I am very sorry to hear that this happened to you. California law protects workers from retaliation after they have reported sexual harassment and/or discrimination. If your employer fired you because you complained about sexual harassment, you may have a strong case for wrongful termination against your employer. You are not alone in this. Call our Strong Advocates office today. We would be happy to further discuss your individual case, and explain your legal rights and options.

Question: My supervisor repeatedly comments on my appearance and calls me “sweetheart.” Is this sexual harassment?

Answer: It likely depends on the comments and the frequency of the comments. If they are frequent, sexualized comments and you feel that the comments are created a hostile environment, where you have difficulty concentrating and working, then it may be sexual harassment. On the other hand, if the comments are more benign, for instance saying that you look nice, then the circumstances are not likely to rise to the level of legally actionable sexual harassment. This is because a hostile work environment sexual harassment claim requires that the employee be subject to unwanted harassing conduct, and that conduct must be so severe, widespread or persistent that a reasonable person in the employee’s circumstances would have considered the work environment to be hostile or abusive. Also, the employee herself must consider the work environment to be hostile. Among some of the factors used to determine severity and pervasiveness of the facts are: the nature of the unwelcome acts; how often and over what period of time did the acts occur; and the circumstances under which the acts occurred.

If the comments are pervasive, meaning they occur frequently and are highly offensive to a reasonable person, then you might have a sexual harassment claim. If the comments are infrequent or would not be offensive to a reasonable person, then it is unlikely you would have a viable claim.

Question: I’m a student at [REDACTED] and for several months another student has been purposely touching me and rubbing against me when we pass on campus. I’ve told him to stop but he doesn’t. What should I do?

Answer: You have a right to go to school without being harassed or touched. Both California and federal laws protect against gender discrimination, because all people deserve the right to get an education without discrimination, harassment, or abuse. If the same student continues touching you even after you have asked him to stop, I would suggest reporting this to your schools Title 9 coordinator or another administrator in writing. Every federally funded education program must have a Title 9 coordinator. If the touching continues or intensifies, you may want to take additional action. Having a paper trail always helps, so be sure to keep a copy of your report or send it by email. You could also start writing down what happens, when it happens, who is around, what you said, what the other student says, etc. If you would like additional assistance with this, feel free to call our office.

Question: What is quid pro quo?

Answer: Sexual harassment generally takes two forms, quid pro quo or hostile work environment harassment. Quid pro quo is latin for “this for that.” It generally refers to when an employment benefit is conditioned, expressly or implicitly, on submission to an unwelcome sexual advance. This might happen, for instance, if a boss were to say that he/she would give you a promotion if the worker returned a sexual favor. Hostile work environment, on the other hand, is when a victim’s work environment is made hostile or abuse as a result of the sexual harassment. This would occur, for instance, when sexual comments, advances, and/or touching occur and create a hostile or intimidating work environment.

Question: At my last job, my boss was flirting with me after work. It was at a happy hour that the company would pay for sometimes. It was awkward so to get out of it, I made up an excuse for needing to leave. A week later I was moved from my office with a window to a cubicle. My boss said she had to make room from someone that was transferring but my old office stayed empty for over 4 months. It was still empty when I finally left after finding a new job. My salary didn’t change and I can’t prove anything. Could I still sue my old employer for harassment?

Answer: Whether you can successfully file a legal claim against your employer depends on a lot of factors. Based on the information you have provided me, I fear that a jury would not be likely to find in your favor.

In order to have a viable legal claim for sexual harassment, you must be able to prove that you were victim to at least one of two types of sexual harassment claims, quid pro quo harassment and hostile work environment harassment.

To prove a quid pro quo sexual harassment claim, an employee must have been subject to unwelcome sexual advances, conduct, or comments by a supervisor with immediate or successively higher authority over the employee; and the employee’s reaction to harassment must affect tangible aspects of the employee’s compensation, terms, conditions or privileges of employment. (CACI 2520). For instance, this might occur when a supervisor asks for a sexual act in exchange for a promised promotion (or termination).

To prove a hostile work environment harassment claim, the employee must have been subject to unwanted harassing conduct, and that conduct must be so severe, widespread or persistent that a reasonable person in the employee’s circumstances would have considered the work environment to be hostile or abusive.

In your case, it sounds like your supervisor did in fact subject you to unwelcome sexual advances (or flirtation) after work. From your description, it sounds like it was fairly minor. A jury is not likely to conclude that your boss flirting with you one time and then moving you to a cubicle is “severe and pervasive” enough to constitute a hostile work environment. In addition, to establish “quid pro quo” sexual harassment, you generally need to demonstrate that the supervisor has subjected you to a significant, tangible employment action (i.e., a significant change in employment status, such as discharge, demotion, or undesirable reassignment).

Some missing pieces of information that might impact the viability of your claim include: the reason you left your job, whether there were other incidents of sexual harassment by your boss to you or other workers, whether you reported the harassment to anyone, whether there was a legitimate reason your boss made you move out of the office, and whether anyone witnessed your boss flirting with you.

Generally speaking, an individual must file a complaint with the California Department of Fair Employment and Housing within ONE YEAR of the last incident of sexual harassment. In California, a complaint filed with either the DFEH or the federal Equal Employment Opportunity Commission (EEOC) is simultaneously filed with the other government agency. After filing an administrative complaint, a plaintiff obtains a Right-to-sue letter. The Plaintiff must file a private civil lawsuit within in the date specified in the Right-to-Sue letter, which is within one year of the date she/he filed with the DFEH.

Questions: One of my coworkers places his hands on me whenever we talk. He is a high-energy person, a genuine nice guy, and it doesn’t seem malicious. But the constant touching of my arms or shoulders makes me very uncomfortable and I have asked my manager more than a few times to talk to him about it but it hasn’t stopped. I don’t want my coworker to lose his job but I’m upset about my manager not taking my discomfort seriously. Is this sexual harassment?

Answer: No one should touch you in a way that makes you uncomfortable, especially at the workplace. It is your manager’s responsibility to establish a workplace where you feel safe, and it’s unfortunate that the manager has not taken his or her role more seriously. You might consider talking to his/her manager about it, or reporting it to Human Resources. You do not have to tolerate this behavior.

Whether this behavior is an actionable legal claim for sexual harassment is a different question, and I do not have enough information to fully answer it at this point.

There are generally two different types of sexual harassment claims, quid pro quo harassment and hostile work environment harassment.

To prove a quid pro quo sexual harassment claim, an employee must have been subject to unwelcome sexual advances, conduct, or comments by a supervisor with immediate or successively higher authority over the employee; and the employee’s reaction to harassment must affect tangible aspects of the employee’s compensation, terms, conditions or privileges of employment. (CACI 2520). For instance, this might occur when a supervisor asks for a sexual act in exchange for a promised promotion (or termination).

To prove a hostile work environment harassment claim, the employee must have been subject to unwanted harassing conduct, and that conduct must be so severe, widespread or persistent that a reasonable person in the employee’s circumstances would have considered the work environment to be hostile or abusive. Also, the employee herself must consider the work environment to be hostile. Among some of the factors used to determine severity and pervasiveness of the facts are: the nature of the unwelcome acts; how often and over what period of time did the acts occur; and the circumstances under which the acts occurred. (CACI 2524).

In your situation, we would want to consider the position of the person who is touching you, how long this has been occurring, among other things. If you would like to discuss this issue further with one of our skilled legal team, please feel free to contact Strong Advocates directly at (800) 260-1495.

If you were sexually harassed at work, the first step is to communicate to the harasser that their behavior is unwelcome, and ask them to stop. If the behavior continues, you should bring your complaint to your immediate supervisor. If your company has a detailed procedure for filing sexual harassment claims, you should follow it, taking note of any time limits set by the policy. It is important for your company’s management to be aware of the harassment so that they can begin a prompt impartial investigation of the complaint.

Keep a written account of the harassment incidents that include details such as dates, names of those involved and what was said or done. Also, be sure to keep any records of the sexual harassment, such as emails, text messages or letters you may have received. If there are any witnesses of the harassment, it may be helpful to obtain written accounts of what they saw.

If you are unable to resolve the complaint promptly through your employer and you wish to pursue the matter, then you can file an administrative claim with the Department of Fair Employment and Housing (DFEH) and/or the Equal Employment Opportunity Commission (EEOC). The agency will issue you a right to sue letter which permits you to bring your case to court.