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Answers
to the Most Frequently Asked Questions
About Sexual Hassment in California
(1)
1.
What is sexual
harassment?
Sexual harassment under California and Federal law is
generally defined as unwanted sexual contact of two
main types: (a) quid pro quo harassment
which occurs when employment is conditioned on the submission
to unwelcome sexual advances, or (b) unwelcomed sexual
conduct that was severe or pervasive enough to create
an abusive environment for the employee.
2.
Who can sue
for sexual harassment in the work place?
Any person who works for any company can sue for sexual
harassment.
3.
Does the sexual
harassment have to be perpetrated by a member of the
opposite sex?
No. Both male and female employees are protected by
California sexual harassment laws and are protected
from sexual harassment by a member of the same sex even
if the perpetrator and/or the victim are not homosexuals.
4.
Does there
need to be actual touching for sexual harassment to
occur?
No. Sexual harassment has been found to include a large
range of inappropriate behavior including requests for
sexual favors, unwanted sexual advances or propositions,
verbal conduct, slurs or derogatory comments and comments
about a person's body, appearance or sexual activity.
In fact, visual harassment, including leering looks,
offensive gestures or derogatory posters, cartoons or
drawings have been found sufficient to create a hostile
environment.
5.
Are sexual
harassment cases limited to the work place?
No. The most frequent type of sexual harassment case
arise out of an employment relationship; however, California
has passed a special law which prohibits sexual harassment
in a very wide range of business, service or professional
relationships. California Civil Code section 51.9 lays
out the relationships covered.
6.
Does the sexual
harassment have to be directed at me and how bad does
it have to be for me to win my case?
Under California law, if sexual harassment permeates
an employee's work environment, they may have a claim
even if the harassing conduct is not directed at the
employee personally, but occurs in the employee's presence.
However, whether the harassment is directed at the employee
or someone else, for the plaintiff to be able to recover,
they must establish that the harassment was severe or
pervasive. The court will look at the frequency of the
conduct; the severity of the conduct; whether the conduct
was physically threatening, humiliating or was a mere
offensive utterance; and whether the conduct reasonably
interfered with the employee's work performance. The
courts will generally hold that any sexual touching
passes the severe standard.
7.
Can I win a
sexual harassment case if it is only my word against
the perpetrator's?
Yes. Plaintiffs frequently prevail in "he said/she said"
cases if the plaintiff is more credible than the perpetrator,
although it does help if there are other witnesses to
the sexual harassment or evidence that the perpetrator
harassed other employees.
8.
I'm scared
to report the harassment because I fear that I will
be retaliated against or fired. What should I do?
Don't worry. The California law protections against
retaliation for reporting sexual harassment are even
stronger than the laws that prevent the harassment from
occurring. The law strictly prohibits an employer from
retaliating against anyone who has opposed practices
of sexual harassment and/or discrimination or has filed
a complaint, testified or assisted in any proceeding
involving sexual harassment. If the employer retaliates,
the employee has yet another cause of action to sue
the employer and there has been a recent trend in California
cases for employees to receive larger verdicts for the
retaliatory conduct of the employer than for the original
sexual harassment.
9.
What do I need
to do to protect my rights if I have been sexually harassed?
Generally it is wise to seek the advice of an attorney
immediately. If you want to try to work it out within
your company first, you should consult your employee
handbook and procedure manual to learn of the appropriate
way to report sexual harassment within your company.
If there is no manual, and the company has a human resource
department, it is generally wise to report the harassment
to human resources, if the company has a human resource
department.
Any report of the sexual harassment to the company should
be in writing, detailing all of the
acts.
An employee can bring a sexual harassment claim against
a company while they are still working for the company.
Before bringing a lawsuit, the employee must first file
a claim with the Department of Fair Employment and Housing
(DFEH) or with the Equal Employment Opportunity Commission
(EEOC). The employee then has a choice of allowing the
administrative agency to investigate or immediately
obtain a right to sue letter.
Because the statute of limitations in sexual harassment
cases is not very clearly defined, an employee should
move quickly to find an attorney once they feel there
has been sexual harassment. It is important that the
administrative claims are filled out properly and an
attorney can help in this regard.
10.
Will my case
have to go to trial?
Probably not. Over 90% of sexual harassment cases are
settled prior to trial and a significant number are settled
without litigation.
1.
Most legal questions require complex answers. The
answers provided here may not be complete or fully accurate
but attempt to provide consumers with abbreviated answers.
For a more detailed answers to these questions, a consumer
should check out other articles in this section of this
web site, research other legal articles and texts on
the subject matter or consult with an attorney.
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 JohnWiner.com
for more information.
If you live in California and believe that you are a victim of Sexual Harassment click here for a free consultation. | 
