sexual harassment in californiaIt’s hard to believe that sexual harassment still occurs in the modern workplace, but it does. Luckily, Federal and California state laws offer powerful protections against workplace sexual
harassment.

Under the law, there are two main types of sexual harassment:

“Sleep with me if you want to keep your job”

Quid pro quo sexual harassment is the type of harassment people are most familiar with. “Quid pro quo” is Latin for “this for that”. This form of sexual harassment involves a supervisor conditioning employee benefits, such as promotions, benefits or continuation of employment itself, on the employee’s acceptance of the supervisor’s harassing conduct, e.g., sexual advances.

There is probably not a more blatant form of employer exploitation of his superior position over a subordinate and the law is correspondingly harsh toward this type of harassment. Under California law, the employer is strictly liable for the sexual harassment of the supervisor and has no special legal defenses available to it. A successful plaintiff can recover lost wages and compensation of other economic losses, emotional distress damages, interest and attorney fees, and in cases where the employer’s officers, directors or managing agents knew of the harassment, punitive damages intended to punish or deter the employer.

Hostile work environment sexual harassment

Hostile work environment sexual harassment (HWE) consists of harassing conduct that is so severe or pervasive that it creates a hostile work environment for employees. Supervisors, co-workers, even subordinates can engage in conduct that gives rise to HWE. Harassing conduct includes slurs, taunts, intimidation, ridicule, groping, grabbing, etc.

Notice the requirement is not severe AND pervasive, but severe OR pervasive, meaning that a single instance of harassing conduct could create a hostile work environment if it is severe enough. Alternatively, a campaign of multiple acts of subtle harassment could collectively create a hostile work environment if it is pervasive enough.

The employee does not have to be the direct target of the harassing conduct in order to file a claim. For instance, a woman who witnesses her female co-workers being groped and propositioned can bring a claim for hostile work environment sexual harassment.

Recently, the California Supreme Court held that employer actions, such as termination, demotion, etc., could also constitute hostile work environment harassing conduct. See Roby v. McKesson HBOC (2009) 146 Cal.App.4th 63.

Harassment by supervisors and co-workers

If the harassment is by a supervisor, under California law, the employer will be on the hook under strict liability. If the harassment is by a co-worker, however, the employer will only be on the hook if a supervisor knew or should have known of the harassment and failed to take immediate and appropriate corrective action.

Federal law diverges from California law here in an unwelcome direction. Under Title VII of the Civil Rights Act of 1964, when a supervisor engages in hostile work environment harassment that does not involve tangible employer actions (e.g., termination, demotion), the employer can escape liability for HWE if the employer can show 1) employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior and 2) the employee unreasonably failed to take advantage of the preventive or corrective opportunities provided by the employer, or to avoid harm otherwise. See Burlington Industries, Inc. v. Ellerth (1998) 524 US 742, 764–765; Faragher v. City of Boca Raton (1998) 524 US 775, 806. This is unfortunate in that many victims of sexual harassment do not immediately report it to their employers for fear of retaliation. Under federal law, these employees may be out of luck. This is one of the reasons why filing a sexual harassment claim under California rather than Federal law is usually the better course.

Conclusion

Sexual harassment law offer strong protections in California and victims should not be afraid to fight back. As always, it is best to talk to a lawyer as soon as possible. This is particularly true given that strict filing deadlines apply (180 days to file a charge with the Equal Employment Opportunity Commission and 1 year to file a charge with the California Department of Fair Employment and Housing). Many lawyers offer free and confidential consultations, so don’t wait.

36 Comments

  1. Deanna Cardona on May 13, 2020 at 2:59 pm

    To whom it may concern I Deanna Cardona called the lead staff for Lake Marie to discuss a couple of issues regarding work and for some advice. I reported to her about a co worker by the name of Fernando Martinez my position at Lake Marie is DSP 2 and I work NOC which is considered a 10pm to 6am shift I’ve been an employee for almost 3 yrs with the company. I’ve worked with Fernando on a shifts from 6am to 9 am and 2pm to 10pm and never had an issue with him when he changed his shift to noc last year after about two months of doing noc he was making me feel uncomfortable by discussing his sex life with me about what he would do with different girls and he would be discreet for example how he would do it in there ass…..and how he would use them I told him that I didn’t want to know it’s none of my business what he does in his personal life but he would laugh and still tell me I would walk away to the bathrooms and start cleaning and he would follow me around I told him several times that I didn’t care and to not tell me anymore this is still going on as of this month. I noticed after a while of him still trying to tell me about his personal life he would get Agitated that’s when the poking of the arms began I would tell him to stop I don’t like that with a serious tone he would stop for a bit then start doing it again this would go on throughout the night I would sit in the second living room and he would just agitate me by standing on the side of me poking my arm telling me to sit in the other living room I would tell him no cause I wanted to watch a different show but he would poke me until I would move. I had asked a co worker if he does this to her when she does noc with him She said he does the same thing to her but he would only poke her on the arm so I thought okay then that’s just his personality well several weeks later he started to tell me that my husband is probably cheating on me cause he has to much free time when I’m at work I told him no he is not like that I have been married for 20 years and he shouldn’t worry about my relationship. And this went on to where I started to ? My husband and call at night that’s when my husband notice something was wrong but I didn’t say anything to my husband yet. After I started to distancing myself from him he stopped then slowly we started to talk again about work then he started again he would come from behind and tap my face with a open hand which scared the shit out of me I told him what the fuck are you doing you need to stop he laughed and stopped so I thought he was finished. so now he would poke me and slap me on my face I couldn’t stand it anymore I started to call out. my boss had mention about a new position coming up for a one on one I asked her about it and I let her know I was interested so I thought this is my way to get away but the position took longer to open up then what I thought. So now he started to choke me and slap me which I started to honestly feel Uncomfortable and scared…. but I still didn’t say nothing cause of what I was told in the past how I complain a lot and I’m not going to lie I did…so now this co worker is slapping me, choking me and pulling my hair I usually have it in a bun Fernando started to sneak up from behind me and grab my bun and full on yank me my whole head would go back and he would not let go I would have to get up and follow him around until he would let go I would talk loud and tell him to let go hoping MV would come out. When I would raise my voice louder he would let go it got to the point to when he would walk by I would be scared and raise my hands to block him and he would laugh… then one night he was trying to yank my hair so I would be more aware of my surroundings so then he would sneak up and put a pillow over my face so I couldn’t raise my voice and no one can hear me yell then I really got scared when he literally chased me around the dinner table try to get I sat in the restroom for about 2 hrs with the door lock when I would open it and try to come out he would be sitting the chair against the wall in the second living room this went on all night I was honestly scared because when he was chasing me around the dinner table he pulled out a chair so I couldn’t get through I jumped over that chair fast and continuously telling him he needed to stop it got to the point to where I opened my water bottle that was on the table and threw it at him with water flying everywhere and this last Sunday this is why I called out a lot I would start to get anxiety coming to work because he wouldn’t stop on Friday night when arrived back to where ever he went he jumped on my back I was all done with the noc list and was watching a movie on my phone laying on the couch in the second living room he jumped on me and started to rub my back hard I told him to get the fuck off of me what the fuck are you doing he kept on I triing to move around to knoit him off but he continued and was saying u have knots in ur back I said leave them there get off he was making weird noise that scared me I finally talked to my husband he was really upset and wanted know who was he and he wanted to kick his ass I’m just being honest sorry for the language. I’ve come to work wearing the same clothes for like three days in a row so maybe he would come near me but that didn’t work It got the point that he started to gossip a lot about things that were not true …. see text attached I don’t know what to do anymore……..

  2. Anonymous on April 20, 2020 at 9:21 am

    These days women use a flame-thrower or a hammer to kill a mosquito. While there are many legitimate complaints re sexual harassment, there are also many bogus, get rich quick claims. These bogus claims portray women as a weak/fragile gender that is severely impacted by an inappropriate joke and or a complement. To claim that because a man touched her arm or made stupid comments she now suffers mental anguish and or pain and suffering is inappropriate. Many women touch men on the shoulder or arm and the man sits there and does not make a move with fear that he would be accused of Sexual Harassment. Give me a break.
    Let me assure you I am a woman and have been exposed to men doing the improper thing many times, but, I am also strong and can stand up against these kind of inappropriate behaviors. If the guilty person has power over your career then this could be a problem. For me, I changed jobs and it was the best thing for my career. If the person does not have power over your career repeats stupid behavior then you can and must confront the person and if it continues, report the person to managers and higher level coworkers. Please, lets stand together as strong and independent women that we are.

  3. JAMES SOLBAKKEN on February 4, 2020 at 1:58 pm

    What was so different in the olden days that we used to be able to meet people and have fun without being rude and/or creepy and/or extortionist about it?
    The way it is now, I’d be inclined to accuse women preemptively of creating a hostile environment just to protect my self. Which is too bad because otherwise we might have had a swell time.

  4. Anonymous California 10.2018 on October 11, 2018 at 9:01 am

    Jimmy NOHO – see a therapist. What happened to you has given you a skewed view of sexual harassment and the effect on individuals. Not everyone is able to report at the time it happens for lots of reasons. Saying it’s the victim’s fault is not cool. Was it your fault when it happened to you?
    You were a child, not all kids are in the position to report or have supportive parents to assist them through the process; you did, and it seems that you are still affected by this.
    I strongly suggest you invest in some therapy.
    Best wishes to you and your family.

  5. Aki Mofro on September 17, 2018 at 9:06 pm

    I am a manager (male) and recently fell in love with one of my subordinates who works directly for me. (Too much time in the office together). While I NEVER disrespected, touched or even asked for anything inappropriate. I did ONCE tell her that I was falling in love with her (but still didn’t ask her for anything). She said thanks, and that was it. I then apologized in case it made her uncomfortable and moved on as she continued working for me.

    About a week later, I was called in to HR and was told that I had made her uncomfortable and she was going to be removed from under my supervision. I thought it was unfair since I did not believe I was inappropriate at all, I was simply expressing how I felt but apparently it was taken as SH and she would be transferred. I felt horrible because she was such a great employee and now I’ve lost both an employee and a friend.

    I am not looking for sympathy here but, was what I did really SH? The one time I spoke to her I was very careful to simply express a feeling without even a hint of disrespect or never asking for anything. I feel so ashamed, because I think that they misconstrued my intentions. Now, here I am feeling like a freaking office predator.

    • Eugene Lee on September 18, 2018 at 5:45 pm

      Aki, I can tell you had no bad intentions whatsoever and you sound like a very decent person. But you have to keep in mind, SH laws aren’t about decency or fairness, they’re about protecting the subordinate, who is the weaker person in the power relationship with a supervisor. When a superior makes an innocent statement like you did, that could be interpreted as very threatening or pressuring to the subordinate, who looks up to you as their boss and role model. While office romances definitely do happen all the time, they are fraught with danger and serious consequences and can become very complicated as you found out the hard way. My advice is: try to avoid office romances if at all possible, and if you do decide to engage in one, it might be wisest to wait for the subordinate to make the first move and be the initiator (and even then, you still take the risk that if things go south in the relationship, the subordinate could lie and say you initiated and engaged in SH!).

  6. Debbie on August 25, 2018 at 2:56 pm

    My husband is a director and his managers were let go because one male manager was asking for sex in trade for hours. The other was fired because she knew but did not do anything since the male manager threatened her. My husband knew nothing about the sexual harassment until they fired his managers. He has now been terminated and was told the reason was he should have known.

    • Eugene Lee on August 27, 2018 at 1:19 pm

      That all sounds harsh, but did you have a question?

  7. John Guidice on January 23, 2018 at 6:14 am

    If I filed a complaint and the complaint was accepted by the EEOC ,
    to investigate can I still
    file with the state of California if the complaint was filed August 27,2012 an the complaint has not been adjudicated yet.

  8. […] lawmakers’ jobs and future prospects. This is because California State Sexual Harassment law states if the harassment is by a supervisor, the employer will be on the hook under strict liability. If […]

  9. […] in mind, California State Sexual Harassment law states if the harassment is by a supervisor, the employer will be on the hook under strict liability. If […]

  10. Jimmy NOHO on November 10, 2017 at 1:39 pm

    GIVE ME A BREAK!!!!!! I dont care if you all hate me after this, but dammit tell the frickin truth. All of you women do EVERYTHING you can to look sexy for men. You flirt, you physically tease, you work as a stripper for a living and the list goes on. You ALWAYS show lots of cleavage, but then you b**** when a guy touches you or slaps you on the a** because you made him horny as hell by touching him and showing as much skin as you can to get his attention or his money. But when he touches you….OH no it’s time for court because it’s not going the way you planned or wanted. THEN, the worst part is, if it was so bad why didn’t you report it to the police 20 or 30 years ago.

    The only response I ever hear is “I was afraid that it would ruin my career” give me a p****** break. If this is the only way you think you can get that Job then you all are dumb a**** and deserve what you get. You didn’t have to go to his hotel room or car or wherever and let him touch you…it’s YOUR frickin fault unless he overpowered you and didn’t report it! So now it’s 30 years later and you cry on television and talk about how it devastated you life and you want the guy who “Touched you” to go to jail and give you money………….. BTW: I’m a guy and I was raped as a kid, my parents call the police he went to jail, I recovered and life goes on. Yes I remember it clearly but it doesn’t control my life and I’m not out chasing him down for money, I’m happy and content

    • Anonymous on June 2, 2018 at 7:07 pm

      Jimmy Noho: You are wrong in that what you have described may be the case at times but I personally was desperate to fit in this new job as I had a year gap in employment previously to help care for a sick family member as well had experienced a lay off prior to the gap but not because I didn’t work hard! So that doesn’t look good! So anyway, I tried so hard to fit in and work hard at this new company! I never “showed cleavage or skin” nor did I flirt although I was just positive and “normally” friendly, not a bitch, and this MARRIED, slime bag of a man, A supervisor, at that, tried to put a lot of pressure on me to go out to dinner with him and have drinks with him! He was a real jerk! He had influence with the others…Made me real uncomfortable…..a short time later I heard that him and some of the other male arrogant Supervisors had labeled me as not friendly and a front when I never did anything to anyone…I was positive and friendly but the problem was I WASNT A FLIRTY SLUT THAT WOULD GO OUT WITH MARRIED NASTY ASS MEN! Bottom line: After working at the company as a permanently hired employee for 4+ months, I was let go for not meeting “company standard”

  11. John on June 5, 2017 at 11:44 pm

    We have a manager that always calls the men her boys, or the boys anytime we are in a meeting. Is that sexual harassment? This concerns me as there are men and women that work together and they should be respected at all times.

  12. C W on February 10, 2017 at 5:12 pm

    A friend of mine has recently found herself in a predicament and wants to know if she still has rights. She is a supervisor and engaged in an off work relationship with a subordinate. Things have ended and he has threatened to tell everyone, barged in her office on multiple occasions to demand a raise, threaten her not to tell anyone, and force her to kiss him. He’s cursed at her, and cornered her demanding his “stuff back”. Today he followed her through offices. As she tried to escape, he blocked the door, grabbed her arm so she screamed for an employee to help. The guy cursed her and took off. She doesn’t feel she can fire him or has any rights since she as a supervisor allowed a relationship to happen. What can and should she do?

  13. Michael Lake on February 7, 2017 at 6:30 pm

    So I filed a sexual harassment report reguarding an individual who was sexually harassing a female employee. My report included a request at the bottom telling the employer to not disclose the report to the reported individual. They DID give/show said report to the individual now I’m being harassed by him. What is the law reguarding the handling of sexual harassment reports? Do I have a legal recourse?

  14. Mae on January 24, 2017 at 4:44 am

    I have been accused of doing drugs by a co worker.not once but several times. She has nothing to back up her lies and accusations and my boss wont do anything about it.. There are only 3 employees where I work .ive insisted he give us all drug tests because i will pass it..but he wont do it..she is telling not only the boss but customers as well. What can i do??

  15. tracy on January 17, 2017 at 10:23 am

    if a company in California has 10 or less employees is Sexual Harassment training still mandatory?

  16. doris chalk on December 5, 2016 at 12:55 am

    my family needed to fill out CA CH-100 a few weeks ago and was informed of a business with a lot of fillable forms . If others are looking for CA CH-100 also , here’s a https://goo.gl/n1FNyr

  17. suethecollectors on August 28, 2016 at 10:00 pm

    really this harassment faced by many people but thanks for these law’s which always protect you from harassment and for those who are enduring this please talk to a lawyer to get rid of this harassment

  18. Loretta y on November 8, 2015 at 1:39 pm

    I have a meeting on mondatly regarding this also they made me go home that night

  19. Loretta y on November 8, 2015 at 1:38 pm

    Another employee put hands on me and i have lost days of work

  20. TTMELLX2 on December 16, 2014 at 1:40 pm

    Have a temporary restraining order against another employee for harassment. Both of us work for company and I brought the emails and texts to the attention of the human resource dept. However, human resource has stated that due to the harassment happening after business hours they wash there hands of this behavior and it is not work related ! So since both are employees how is this even legal ???? Do I not have any employee rights ?

    • Barbara Elaine Leon on May 9, 2015 at 2:40 pm

      You sure do, go over their heads and get to corporate. Alot of time I find that the bad behavior stops at the doors of the supervisors.So, go over their heads and keep pushing this.I had a situation where I was dating a coworker, in which neither of us left in bad resolve. But, he was terminated over something else trivial.Which to this day, I still feel it was my head boss that felt a streak of jealousy in the relations. Being he use to call me into his office and jokingly ask so “whats the deal between you and so and so.” In which , I told him about his escapades on company time to the local wattering hole for beer and makeout sessions with his wife now prior to working. And my private life is no ones business .So, I battled black mail with black mail right back. But you really need to follow up on that.

  21. Joey Constanza on December 10, 2014 at 3:28 pm

    One of my friends works for a big name company here in Chicago. They have told me about a few times where they saw some co-workers sexually harassing another co-worker. I have always known not to dwell into other people’s business, but for this case should my friend intervene? I don’t want them to get in trouble for anything. Perhaps I should tell my friend to tell the co-worker about getting a sexual harassment lawyer. http://www.employeelawyerchicago.com/sexual-harassment-attorney/

  22. Sam Payn on December 27, 2013 at 1:00 am

    A very informative post there. I would like to add that employers
    conducting business in California working with 50 or more workers are
    supposed to conduct sexual harassment training for its employees. This
    2-hour-training should be imparted every two years to all supervisory
    employees (both old and new)

    • Kelly Marine Ball on May 24, 2015 at 3:59 pm

      Hi Sam. What if a Manager was FIRED for sexual harassment ONE HOUR AFTER THEY COMPLETED THE 2 HOUR TRAINING COURSE? We have a wrongful termination situation on our hands. In addition, what are the consequences If other Managers have not taken the course in time as required by HR? Any feed back would be appreciated. Thank you!

  23. curious and depressed on September 12, 2012 at 10:51 pm

    Here’s a question. Had a supervisor tell me to cooperate or my hours will be reduced. Cooperate means carry on in conversations and pictures via text. I have all the text messages showing my distress before harassment started and then the continuing harassment from then on as well as several witness willing to talk about hearing and seeing the harassment. What do I do?

  24. Mark Melgie on April 18, 2012 at 9:43 am

    @ dan – why would you want to put a picture of your wife in bikini in public? 

    Nope, however if there is a lewd acts against an employee by a person with moral authority against him/her and also it depends on the grab of the image.

  25. uk immigration solicitors on February 5, 2012 at 3:07 pm

    Before we start talking about how to deal with sexual harassment I think it’s important to define exactly what sexual harassment.

  26. Dan on January 24, 2012 at 4:10 am

    Is it still sexual harrassment to have a picture of your wife on your desk wearing a skimpy bathing suit?

  27. Wayne Morrise on October 5, 2011 at 9:58 am

    Thinking about having an attorney to protect you against this kind of situation is the greatest thing you can do to make yourself secured from harm.

  28. Janet on March 29, 2011 at 7:12 am

    IF someone excuses me of sexual harrasment don’t they need to tell me who it was so I can protect myself or at least try to recall an incident if there was one

  29. Indiana DUI on July 16, 2010 at 12:18 pm

    Very interesting, we have similar laws in Indiana, however a few things are definitely different from CA law.

  30. Advogado Rio de Janeiro on June 26, 2010 at 7:52 pm

    we are getting there too, here is difficult to prove sexual harassment in the courts,nobody wants to be a witness!

    • Dublj on September 16, 2012 at 7:11 am

      Document EVERYTHING. I mean anything said, anything insinuated as having conditions, any unwanted touching, any discussions you have had with the person doing the alleged sexual harassment, any with their superiors. The best way to win a case of any kind is with a clear and accurate paper trail of what was done and what steps were taken to put an end to the unwanted actions. A witness is always better, but, too often they are fearful for their own jobs and/or retaliation. So, always write everything down as soon as possible and as accurately as possible. Be sure not to do it on company time, but do it, nonetheless.

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