Bill Cosby’s conviction on sexual assault charges was originally seen as a tremendous victory for sexual harassment victims. The Harvey Weinstein debacle soon followed and the #MeToo movement was suddenly in full bloom. At that moment, women’s anger and frustration had reached a boiling point, fueled by decades of harassment and a legal system that was created to address this type of behavior but which in fact had done little to protect its victims.
However, now that time has passed and after the initial fervor of the #MeToo movement has seemingly subsided, how much has really changed? After that first wave of firings and high-profile lawsuits, it seems that things have gone back to normal. It has become business as usual in the workplace and that’s problematic. Reports of horrific workplace harassment are now as common as they were before the advent of the #MeToo movement. Sexual harassment in the workplace continues to be an unfortunate and dire issue that deserves serious attention and real action to combat.
Students in the top law schools may study these recent, high-profile cases but unless studying employment law, few are assigned a course specifically focused on sexual harassment. What they do learn as law school students is the ability to conduct their own research. This empowers them to know when and how to speak out in the event of harassment. For example, since criminal harassment is generally confined to state law, the legal requirements for employers vary. It’s important to know your rights in the state where you reside. Start your own learning with this basic information from California-based West Coast employment lawyers.
Sexual Harassment, Defined
Simply put, it is against the law to harass a job applicant or current employee because of his or her sex. The term harassment is sometimes ambiguous, but it can include verbal or physical harassment that is of a sexual nature, unwanted sexual advances, or requests and demands for sexual favors. Despite the existence of clear-cut laws to prevent — and punish — this type of behavior, the issue persists as if without impunity.
It’s important to understand that harassment does not necessarily have to be sexual. It also encompasses remarks about someone’s sex. It is, for example, against the law to harass a female employee by making offensive comments about women. This means that sexual harassment does not have to be sexually suggestive at all. Say that a woman works as a plumber for an all male business, and despite her excellent job performance, she is the only employee who is ever singled out for criticism and verbal abuse. This type of behavior counts as a form of illegal sexual harassment.
The prevalence of sexual harassment in the workplace is particularly egregious because most employers have a legal duty to prevent this type of harassment in the first place. Specifically, the California Fair Employment and Housing Act (FEHA) requires all employers to take “all reasonable steps necessary to prevent discrimination and harassment from occurring” (Gov.C. § 12940(k)).
Sexual harassment includes a wide of variety of behaviors that are thought of as offensive. This includes gender-based harassment among same sex individuals as well. According to FEHA, the following behaviors are prohibited forms of sexual harassment:
- Demanding sexual favors in exchange for employment benefits.
- Derogatory comments, slurs, sexual jokes and comments.
- Unsolicited or unwanted sexual contact or gestures.
- Assault, unwanted touching, or unwanted confinement.
- Suggestive pictures, objects, or other visuals.
- Retaliation or threats in response to sexual advances.
If you have experienced any of the examples mentioned above while in the workplace, the first thing you should do is to inform your employer. Naturally, this is easier said than done. Depending on the internal politics of your employer, speaking up about the sexual harassment you have suffered may truly be a nerve-racking proposition. However, your employer is required to have anti-harassment policies in place and they must communicate these policies to you. Your employer’s harassment policy is important because it will specify the exact person to whom harassment complaints should be directed to.
You typically want to first speak with your direct supervisor. This is especially appropriate if the harassment you have suffered is being committed by an employee who isn’t the supervisor. However, your supervisor may be the one who is subjecting you to the inappropriate behavior, which can make addressing the issue with your supervisor that much more challenging. Your employer should ideally offer a variety of options if you need to complain about sexual harassment or any other forms of harassment.
It can also be useful in this situation to understand the basic parameters of employee privacy rights and employer rights to workplace surveillance.
In general, there are two types of evidence to support your harassment case and help defend yourself against any contradictory claims made by your employer.
As in any other type of case, direct evidence is the ideal and most effective way of proving sexual harassment. An example of direct evidence would be a written statement by your employer stating that he or she will fire you if you do not perform a sexual act. This would also be direct evidence of quid pro quo harassment. Verbal statements can be used to support your claim, as well.
Direct evidence, while powerful and irrefutable, will not always be easy to come by. Sexual harassment will not necessarily be as obvious as in the example mentioned above, either. If you do not have direct evidence, harassment must be inferred from the specific circumstances that surround you and the harasser. This evidence is known as circumstantial evidence.
Proving a sexual harassment claim based on circumstantial evidence can still be effective. Let’s consider the previously discussed example of the employer who threatened to fire an employee for refusing to perform a sexual act. First, let’s assume that the employer never explicitly threatened to fire the employee for refusing to consent. The employee nevertheless refused the proposition and was fired the next day. Because of the proximity of the firing with the employer’s proposition, circumstantial evidence of a connection between the proposition and the decision to fire the employee can be inferred.
Because direct evidence is not always available, it is helpful to document your experiences as they happen. Keep detailed notes of any inappropriate or uncomfortable conversations or interactions you had with your harasser. Make sure to familiarize yourself with your employer’s procedure for reporting sexual harassment. In the event that there are contradictory statements between you and your harasser about what happened, your documentation can become crucial in supporting your sexual harassment claim.
If You’re Being Harassed
Below is a step by step guide to knowing what to do if you were the victim of sexual harassment in the workplace.
- Say NO. Be clear about how offensive the harasser’s behavior is and refuse their advances or propositions.
- As mentioned, write down everything — including dates, times, individuals involved, as well as the names of any witnesses. If possible, ask your colleagues to document any harassment they have witnessed.
- Inform your supervisor as soon as you can. If nothing happens, contact your Human Resources (HR) department. Make sure to put your complaint in writing.
- If you haven’t already received a copy of your employee handbook, ask for it and make sure it contains specific policies for how your employer handles these behaviors.
Finally, if you or a loved one was the victim of sexual harassment in the workplace, we encourage you to speak with an experienced sexual harassment lawyer as soon as you can.
About the Author
The compassionate team of employment attorneys at West Coast Employment Lawyers will carefully assess your situation and build a strong case against your employer. We will fight for your right to a safe work environment and we will aggressively pursue any damages you may be entitled to.