Litigation of a sexual harassment case can be a very daunting experience for both the plaintiff (victim) and the attorney. We have compiled several articles that will help educate you about sexual harassment litigation.
- A Consumer's Guide to Sexual Harassment Litigation
- Anatomy of a Sexual Harassment Trial - Plaintiff's Perspective
- Frequently Asked Questions About Mediation
- Frequently Asked Questions About Trial
A Consumer's Guide to Sexual Harassment Litigation
A. What is Sexual Harassment?
Both California and Federal law generally define sexual harassment as unwanted sexual conduct of two main types: quid pro quo harassment and hostile environment harassment.
Quid pro quo harassment occurs when employment is conditioned, expressly or impliedly, on the submission to unwelcome sexual advances (such as a supervisor saying "If you want to keep your job, you'd better have sex with me")
The more frequent type of sexual harassment, hostile environment harassment, generally occurs when the employee's work environment is made hostile or abusive by sexual misconduct.
Under the Fair Employment and Housing Act (FEHA), harassment includes gender harassment or sex-based harassment, i.e., conduct that shows hostility based on gender even though the conduct itself was not sexual. An example of this type of harassment would be a supervisor's hostile comments that "women do not belong in the work place."
Sexual harassment has been found to include:
- unwanted sexual advances or propositions
- verbal conduct, including epithets, slurs or derogatory comments and comments about a person's body, appearance or sexual activity;
- physical conduct, including assault, impeding or blocking movement, or any physical interference with normal work or movement; and
- harassment, including leering looks, offensive gestures or derogatory posters, cartoons or drawings.
B. Under What Settings Can Sexual Harassment Occur
Under California law, sexual harassment claims generally arise out of either an employment situation or when there is a business, service or professional relationship between the victim and the perpetrator. Examples of professional relationships include therapist and patients, attorneys and clients, and doctors and patients. (See California Civil Code section 51.9.)
C. An Employer's Duty Under Sexual Harassment Laws.
An employer must take all reasonable steps necessary to prevent discrimination and harassment from occurring. (California Government Code section 12940(k).)
If harassment has occurred, the employer has a duty to take measures to not only change the harasser's behavior, but to prevent potential harassers from unlawful conduct.
Reasonable steps to prevent discrimination and harassment from occurring include:
- affirmatively raising the issue of harassment;
- expressing strong disapproval of harassment;
- developing appropriate sanctions for harassment;
- informing employees of their rights and instructing them to report harassment;
- developing methods to sensitize all employees to behavioral indicators of sexual harassment and the gravity of its consequences.
D. Retaliation Prohibited.
It is an unlawful employment practice under the Fair Employment and Housing Act (FEHA) to retaliate against anyone who has opposed practices proscribed by FEHA, i.e., sexual harassment or discrimination, or has filed a complaint, testified or assisted in any proceeding under FEHA. Thus, employees are protected from retaliation if they complain about harassment or discrimination.
E. The Requirement of Bringing an Administrative Claim.
Before pursuing a civil suit under California law, a plaintiff must first exhaust his or her administrative remedies by filing a complaint with the Department of Fair Employment and Housing (DFEH) or with the Equal Employment Opportunity Commission (EEOC).
It is important that the complaint specifically identify the discrimination and the perpetrators of the discrimination.
If an employee files with the Department of Fair Employment and Housing, he or she can ask the agency not to investigate the claim but, rather, simply immediately to issue a right-to-sue letter.
F. Strict Liability in Cases of Sexual Harassment by a Supervisor.
Under California law, if a supervisor sexually harasses an employee under his or her supervision or retaliates against an employee under his or her supervision, there is grounds for a strict liability claim against the employer. In other words, if a plaintiff can prove that the harassment occurred, the company is automatically liable for damages awarded against the supervisor, without the employee having to prove the company was negligent or even did something wrong.
The employer's strict liability arises from FEHA regardless of the employer's own lack of knowledge or it's attempts to remedy a sexual harassment situation.
Thus, any time an employee can prove that sexual harassment by a supervisor occurred, the employee will win if he or she can prove the harassment caused damages, and will be entitled to an attorney fee award. (See "M" below.)
G. Responsibility of an Employer for Sexual Harassment by a
The employer is liable for harassment by a co-worker, customer or independent contractor only if the employer knew or should have known of the harassment and failed to take immediate and appropriate corrective action. (Government Code section 12940(j)(1).)
Thus, in cases in which sexual harassment is perpetrated by a co-worker, it is essential that the employee proves that the employer knew that the perpetrator had harassed the plaintiff or other employees before the acts complained of by the plaintiff and took inadequate steps to prevent it or, in the alternative, the employer should have known of the prior harassing behavior.
H. Who Is Protected From Sexual Harassment.
Under California law, the Fair Employment and Housing Act (FEHA) protects both male and female employees, applicants for employment and independent contractors. It also protects an employee or an applicant from harassment by a person of the same sex. It applies to all employees of any employer.
I. Severe and Pervasive Standard.
To prevail in a sexual harassment claim, the plaintiff must prove that the sexual harassment was severe or pervasive enough to alter working conditions and to create an abusive environment. A plaintiff must show that a reasonable person would have considered the conduct severe or pervasive. If the plaintiff is a female, the fact finder uses a reasonable woman standard; if the plaintiff is male, the fact finder uses a reasonable man standard.
In addition, the plaintiff must demonstrate that he or she found the conduct sufficiently severe or pervasive to interfere with the work environment.
Whether or not conduct is severe or pervasive must be determined from the totality of the circumstances. Such circumstances include:
- the frequency of the conduct;
- the severity of the conduct;
- whether the conduct was physically threatening or humiliating or was a mere offensive utterance;
- whether the conduct reasonably interfered with the plaintiff's work performance, although the plaintiff need not show that she or he could not perform the job.
Remember, the standard is severe or pervasive. The more severe the conduct, i.e., sexual touching of genitals, the less it has to be pervasive (i.e., occurring frequently).
J. When the Harassment Is Not Directed at the Plaintiff Personally.
If sexual harassment permeates the plaintiff's work environment, she or he may have a claim even if the harassing conduct is not directed at the plaintiff personally, but occurs in the plaintiff's presence.
K. The Statute of Limitations.
Generally speaking, a plaintiff must file a complaint with the Department of Fair Employment and Housing (DFEH) or the Equal Employment Opportunity Commission (EEOC) within one year of the harassing conduct. A plaintiff must file a claim with one of the governing entities before filing a lawsuit.
If the sexual harassment has occurred over a long period of time, the plaintiff can sometimes rely on the continuing violation doctrine. Under this doctrine, if it is found to apply, the sexual harassment complaint is timely if any of the discriminatory practices continues into the one-year limitations period.
L. Damages Recoverable in Sexual Harassment Cases.
If an employee sues under California law, he or she is entitled to recover damages for past and future medical and psychiatric expenses, past and future wage loss, damages for emotional distress and punitive damages.
In a sexual harassment case, a plaintiff does not need to undergo psychiatric or psychological treatment in order to recover damage for emotional distress.
To recover punitive damages, i.e., damages to punish the defendant employer, a plaintiff must prove:
- that the employer hired or retained the harassing individual with knowledge of his or her unfitness for the position and in conscious disregard of other's rights for safety;
- authorized or ratified the wrongful conduct; or
- was personally guilty of oppression, fraud or malice.
If the employer is a corporation, its knowledge, conscious disregard, authorization or act of oppression, fraud or malice must be on the part of a corporate officer, director or managing agent. A managing agent is a person who exercises substantial independent authority and judgment over decisions that ultimately determine corporate policy.
A plaintiff can prove that an employer's ratification for purposes of liability for punitive damage by establishing:
- the employer adopted or approved of the action of the harasser;
- it can be inferred from the employer's failure, after being informed of the harassment, that it ratified the conduct of the harasser by such evidence as a failure to fully investigate and punish the harasser.
M. Claim for Loss of Consortium.
A plaintiff's spouse can also sue and recover damages for 'loss of consortium." A spouse is allowed to recover damages for the loss of society, comfort and care that result from the injured spouse's unavailability due to their injury and having to watch the plaintiff suffer. In order to recover these damages, a spouse must be named as a party to the lawsuit and must have been married to the plaintiff at the time of the injury.
There are advantages and disadvantages to filing a loss of consortium claim that should be discussed with an attorney before filing.
N. Recovery for Attorneys Fees.
If the plaintiff can prove harassment/discrimination, he or she is entitled to recover his or her attorneys fees as an element of damages. This is a very important aspect of the law because frequently the award for attorneys fees will be greater than the actual damage award to the employee. California law allows recovery for attorneys fees greater than the amount of actual damages because it recognizes that it important that attorneys have an incentive to handle sexual harassment and discrimination cases and that legitimate victims of harassment and discrimination would be unable to seek legal redress if attorneys fees were not awarded on top of a damage award.
This article was authored by John D. Winer, an eminent sexual harassment attorney in California. The Law Offices of John D. Winer focuses on sexual harassment and abuse cases in California. The firm handles a significant number of sexual abuse and harassment, post traumatic stress disorder and psychotherapist abuse cases. Please visit wmlawyers.com for more information