What you Need to Know About Sexual Harassment Claims

Sexual Harassment Claims

In a 2017 nationwide poll, 20 percent of men and 60 percent of women admitted to experiencing sexual harassment. Of those sexual harassment victims, 60 percent of men and almost 70 percent of women were harassed in the workplace. According to the California Attorney General, sexual harassment includes “unwelcome sexual advances, or other visual, verbal, or physical conduct of a sexual nature and actions that create an intimidating, hostile, or offensive work environment based on an employee’s sex.”

Sexual harassment is illegal—and you do not have to accept that behavior. Most often the remedy includes filing a sexual harassment claim—but first, consult an experienced sexual harassment attorney to understand the basis for sexual harassment claims in the workplace, what claims you can file, and what behaviors constitute sexual harassment.

What California Laws Allow You to Make Workplace Sexual Harassment Claims?

The California Fair Employment and Housing Act (FEHA) protects employees from harassment in the workplace. It expressly bars discrimination in hiring, firing, compensation, and any other terms of employment on the basis of a person’s “sex, gender, gender identity, gender expression, age, sexual orientation,” among other protected categories. The California Department of Fair Employment and Housing (DFEH) is the state agency tasked with enforcing FEHA and other California anti-discrimination and civil rights laws. DFEH administers a complaint process available to any California employee covered by FEHA who has been the victim of sexual harassment in the workplace.

What Types of Sexual Harassment Claims Can You File?

California law provides for two broad categories of sexual harassment claims that employees may file against their employers:

Quid pro quo harassment, sometimes referred to as “this for that harassment.” The Office of the Attorney General of California describes quid pro quo harassment as “unwelcome sexual advances, or other visual, verbal, or physical conduct of a sexual nature” that carry with them the threat of tangible employment consequences if the victim fails to consent.

Hostile work environment harassment is defined as, “conduct of a sexual nature and actions that create an intimidating, hostile, or offensive work environment based on an employee’s sex.”

What Behaviors Constitute Sexual Harassment in the Workplace?

Although workplace sexual harassment may often conform to the stereotype of the older boss chasing his young secretary around a desk, California’s Office of the Attorney General makes clear that to be illegal, “the offensive conduct need not be motivated by sexual desire, but may be based upon an employee’s actual or perceived sex or gender-identity, actual or perceived sexual orientation, and/or pregnancy, childbirth, or related medical conditions.” Moreover, workplace sexual harassment does not only happen between supervisors and subordinates—employees, as well as contractors, customers, or patients can perpetrate sexual harassment.

Examples of common behaviors that constitute sexual harassment in the workplace include:

• Terminating or refusing to promote an employee who will not cooperate with sexual advances
• Offering promotion or preferential treatment to an employee who does cooperate with sexual advances
• Discussing sexual activities, including lewd sexual acts
• Inappropriate touching
• Commenting on physical characteristics
• Displaying offensive or pornographic pictures
• Sexual assault

When Do You File a Sexual Harassment Claim?

At what point does harassing behavior become unlawful? Each person’s situation is different, and a skilled sexual harassment attorney can guide you through the best steps for your situation. Generally, when the following conditions are present, your attorney may advise you to file a claim with the DFEH:

• The harassing behavior must be unwelcome and based on your protected status under FEHA.
• You must find the behavior abusive.
• Another person must reasonably find that the behavior is severe and pervasive enough to create a hostile work environment.

How Do You File a Sexual Harassment Claim?

The DFEH has a process for filing a complaint against your employer. Always speak with an attorney before reaching out to DFEH, but you can visit the agency online to learn more about it and begin to explore that process. Here are some considerations before you file:

• There is a difference between filing a complaint with the DFEH and obtaining a “right to sue” letter from the agency to initiate a lawsuit. An attorney can explain this.
• You should have records of times and dates that encounters with your harasser took place or at least make estimates. Have this information readily available for the DFEH. Hiring an attorney may give more credibility to your case and help you compile the evidence your case needs to succeed.
• If you wish to protect your identity, you are allowed to have another party file on your behalf.
• In California, in most instances, you must contact the DFEH within one year of the incident of harassment.

Seek legal counsel experienced with sexual harassment before you file a claim with the DFEH. This will allow you to get good advice about how to handle your case from its outset. Furthermore, your attorney can file the claim on your behalf to protect your identity.

It is illegal for your employer to retaliate against you if you file a complaint. Yet, this happens frequently. Your lawyer will instruct you as to what to do if you experience retaliation.

What Happens After You File a Sexual Harassment Complaint With the DFEH?

This flowchart describes the DFEH complaint process. In summary, you may either seek an immediate right to sue letter from DFEH, or file a complaint that triggers a DFEH investigation. If you choose the complaint/investigation route, an investigator will collect information to make a recommendation as to whether there is cause to believe that sexual harassment took place. This may include requesting more information from you, requesting information from your employer, making a site visit, and conducting interviews. Once DFEH completes the investigation, it will issue a determination, and the parties will have the opportunity to proceed to dispute resolution or, potentially, litigation.

You may encounter many potential pitfalls and/or benefits from this process, depending on your particular circumstances—so we strongly urge you to seek counsel from an experienced sexual harassment attorney before deciding how to proceed with the DFEH.