Sexual Harassment: An Overview
Sexual harassment has received significant attention in the news thanks in large part to the #MeToo and #TimesUp movements, accusing prominent individuals of abusing their positions of power to take sexual advantage of their subordinates. However, while #MeToo and #TimesUp may have raised general awareness, it hasn’t stopped sexual harassment from occurring.
Recently, a viral video circulated of a customer groping a young waitress at a Georgia restaurant. The waitress took matters into her own hands, tackling her assailant before calling the police. However, her case stands out as just one documented occurrence of how often women (and men) can endure sexual harassment in their everyday lives.
The unfortunate truth of the matter is that sexual harassment remains rampant in our society. In California alone, the Department of Fair Employment and Housing documented 4,822 sexual harassment claims in 2015.
In some circumstances, sexually harassing behavior is also illegal. Obviously, any time it gets physical, such as in the video mentioned above, harassment likely constitutes an assault, and victims can file criminal and civil complaints.
Sexual harassment in the workplace, even without a physical element, may also constitute illegal discrimination. This is the focus of the remainder of this article. Below, we discuss the contours of workplace sexual harassment—the various ways California law addresses it, how the law applies in practice, and what options victims have for seeking redress for sexual harassment.
Confronting sexual harassment in the workplace takes an enormous amount of strength and courage. With the help of an experienced sexual harassment attorney, however, victims of sexual harassment can obtain justice for themselves and other victims: past, present, and future.
How the Law Addresses Sexual Harassment
The law addresses workplace sexual harassment in many ways. First and foremost, California and some local statutes explicitly bar workplace sexual harassment in most instances. In addition, other laws and legal principles punish specific types of conduct that would usually also constitute sexual harassment. Finally, private agreements and policies between employers and their employees often make sexual harassment grounds for legal action.
State and Local Anti-Discrimination Laws
Under the California Fair Employment and Housing Act (FEHA), sexual harassment in the workplace is a form of illegal discrimination on the basis of a victim’s sex. In other words, California law treats sexual harassment as just as discriminatory as making hiring, firing, or any other employment decisions on the basis of a person’s race, color, religion, or national origin. The California Department of Fair Employment and Housing (DFEH) is the state agency tasked with enforcing FEHA. The provisions of FEHA that DFEH enforces extend to virtually all employers statewide, public or private, who employ five or more persons.
In addition, many counties, cities, and towns have their own separate laws governing workplace discrimination. For example, Los Angeles County has adopted an anti-discrimination ordinance barring sexual harassment not only by county employees, but also by county volunteers and outside vendors doing business with the county.
This compilation of state anti-discrimination laws from the National Conference of State Legislatures provides a useful summary of many of the state laws that bar workplace sexual harassment. You can usually find further resources about state and local anti-discrimination laws by visiting your state or city’s department of labor website.
Laws and Legal Principles Addressing Specific Conduct
Even in places where workplace anti-discrimination laws do not explicitly bar sexual harassment, other legal standards often outlaw or punish specific forms of sexually harassing conduct. As mentioned above, when sexual harassment involves unwanted physical contact, criminal assault laws and their corresponding civil remedies may come into play. Similarly, in many jurisdictions, it may prove possible to seek justice for other illegal or wrongful acts that could also constitute sexual harassment, such as stalking, defamation, invasion of privacy, or intentional infliction of emotional distress. In other words, victims of sexual harassment need not necessarily limit themselves to seeking justice under anti-discrimination laws.
Workplace Agreements and Policies
Whether or not conduct constitutes sexual harassment is addressed by specific statutes. In addition, employers often have agreements and policies with employees that set rules barring sexual harassment, making it grounds for firing or other adverse employment consequences.
For example, in unionized workplaces, the union may include anti-sexual harassment provisions in union members’ collective bargaining agreement with the employer, thereby giving employees the right to file grievances for sexual harassment.
Regardless of unionization, employers also frequently require employees to acknowledge receiving and reading employment policies specifically barring explicit sexual harassment, or conduct that could lead to sexual harassment claims (such as dating between coworkers). Depending on factors such as where the company operates and how consistently the company enforces its rules, victims of sexual harassment may rely on these agreements and policies as legally enforceable when confronting sexual harassers.
Sexual Harassment in Practice
In connection with enforcing FEHA, the DFEH describes sexual harassment as “unwanted sexual advances, or visual, verbal or physical conduct of a sexual nature [including] many forms of offensive behavior and…gender-based harassment of a person of the same sex as the harasser.” The Office of the California Attorney General further explains that “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.”
In practice, unlawful sexual harassment in California can include any of the following:
- Unwelcome sexual advances. Any potentially sexual overture, whether it’s as low-key as asking a coworker out for drinks, or as blatant as propositioning an employee for casual sex, may constitute sexual harassment. The advances must be unwelcome, which the victim’s reaction to them can determine, or from a context implying the possibility of adverse job consequences if the victim doesn’t consent. For that reason, a boss making a sexual advance toward a subordinate nearly always poses a high risk of sexual harassment, because of the implied threat that saying “no” could result in negative work consequences.
- Sexualized touching. Touching a coworker in a sexually suggestive manner often constitutes sexual harassment. This may include obvious acts of sexual touching, such as grabbing someone’s behind or breasts, or more subtle touching, such as placing a hand on a coworker’s shoulder and leaning in while she sits at her desk. Some touching between coworkers is, of course, normal and expected. But almost everyone knows and understands the difference between a polite handshake on one hand, and an uninvited, awkwardly long hug on the other.
- Sexualized atmosphere. Sexual harassment also occurs when a workplace treats sexualized conversation as the norm. For example, a “frat boy” or “sorority girl” atmosphere of openly sharing dirty jokes and lewd comments about coworkers’ bodies can often lead to valid claims of sexual harassment. Rude or inappropriate remarks need not target the victim of this kind of harassment. Anyone made to feel as if they must go along with a sexualized workplace atmosphere against their will becomes a victim of this form of sexual harassment.
- Express or implied quid pro quo. Sexual harassment also occurs virtually any time employees directly or indirectly have reason to believe they must consent to sexual demands or offer sexual favors to get, keep, or advance in a job. The employee need not be the person propositioned for sex. For instance, if an employer or employee makes it known the employee “slept his or her way to the top,” other employees may justifiably claim sexual harassment through the implication that if they don’t do the same, they will not grow in their careers.
These are not the only real-life forms of sexual harassment. By design, the FDEH and California Attorney General’s descriptions of sexual harassment encompass a broad range of behaviors.
A principal goal of workplace anti-discrimination laws is to protect all employees from situations in which engaging in or tolerating sexual/sexualized conduct becomes a job requirement. As a rule, the laws are structured so that whenever something feels “off” or “weird” in a sexual way in the workplace, employees can feel justified in consulting a sexual harassment attorney to explore whether illegal harassment has occurred.
Finally, remember that sexual harassment is not limited to straight, cisgendered men harassing women. The law makes the gender identity and sexual orientation of a harasser engaging in the conduct described above, or of the victim of that conduct, irrelevant. No matter who does the harassing or who is the victim, sexual harassment is never permissible.
Confronting Workplace Sexual Harassment
As noted above, confronting workplace sexual harassment often requires tremendous courage. However, with the help of an experienced sexual harassment attorney, victims have various means for fighting back against sexual harassment in the workplace.
Experienced sexual harassment attorneys know the difficulties involved in coming forward with a claim of sexual harassment. Victims worry that by speaking up, they may imperil their jobs, careers, and reputations, among other consequences. As a result, sexual harassment lawyers typically make it their first priority to protect the confidentiality and safety of clients who consult them about workplace sexual harassment issues.
Meeting with an attorney with a track record for representing victims of sexual harassment can often serve as the most meaningful step a victim can take toward confronting wrongful behavior in the workplace. Conversations with an attorney are confidential, and many attorneys will offer initial consultations without charge.
After an initial meeting, an attorney may advise the victim to take any of a number of steps to combat workplace sexual harassment. These may include:
- Engaging in self-help. Sometimes, an attorney might initially counsel a victim of workplace sexual harassment to take specific steps to respond directly to the harasser. That doesn’t necessarily mean taking aggressive steps like the waitress in Georgia. Rather, an attorney might reasonably advise a client to say things to the harasser to make clear that conduct is unwelcome. It’s always possible these statements might put an end to the conduct, but even if they don’t, having said them could serve to strengthen any other action the client and attorney decide to take down the road. Never, however, take this action without first consulting an attorney, who can provide you with the guidance you will need to do so while protecting your rights and your case.
- Filing a FDEH complaint. The FDEH has formal procedures through which employees can report workplace sexual harassment. The filing of a complaint typically triggers an official investigation that may lead to the government taking action against the employer. An attorney can advise the client as to whether and when it is in the client’s best interest to take the step of filing a complaint, and can help draft it in the manner best suited to protecting the client’s legal interests.
- Reporting conduct through workplace channels. Most mid-size and larger workplaces have human resources departments, and procedures for reporting workplace sexual harassment. Smaller firms may also have a designated person with whom victims can lodge complaints. After doing some research about the specifics of the client’s workplace, an attorney can help the client decide when and how to raise issues internally, and can help the client evaluate the adequacy of the company’s response. Human resources departments, however, are notorious for protecting the interests of their companies—not their employees. Consult an attorney before going to human resources—that way, you can take this step while best protecting your job and your case.
- Taking legal action. In appropriate circumstances, an attorney may advise a victim of sexual harassment to bring legal action against the employer and/or the harasser for monetary damages or equitable relief such as job reinstatement. This is a significant step, and one that experienced lawyers pursue carefully to ensure it serves their clients’ best interests.
If you believe you are the victim of workplace sexual harassment, connect with an experienced sexual harassment attorney today. The steps you and your attorney decide to take to fight back will not only help put a stop to harassment in your own case, but will also add to the movement of brave women and men changing the culture of sexual harassment in our society for good.