Has your supervisor made sexual advances towards you?
Do co-workers constantly engage in uncomfortable sexual ‘joking’ and other inappropriate behavior?
Do you have a client or customer that makes sexual comments or passes at you?
These are examples of sexual harassment.
Sexual harassment in the workplace is illegal. It has been defined as any unwelcome behavior of a sexual nature, especially when that behavior has an effect on the employment or workplace of the person receiving or witnessing the conduct.
The EEOC defines sexual harassment as;
Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when:
- Submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, or
- Submission to or rejection of such conduct by an individual is used as a basis for employment decisions affecting such individual, or
- Such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.
Unwelcome Behavior is the critical word. Unwelcome does not mean “involuntary.” A victim may consent or agree to certain conduct and actively participate in it even though it is offensive and objectionable. Therefore, sexual conduct is unwelcome whenever the person subjected to it considers it unwelcome. Whether the person in fact welcomed a request for a date, sex-oriented comment, or joke depends on the circumstances.
The law generally does not prohibit simple teasing, offhand comments, or minor isolated incidents, but concerns itself mainly with more pervasive types of behavior. Sexual harassment becomes illegal when it is so frequent or severe that it causes the work environment itself to feel hostile or offensive, or when it results in a change in employment decisions (such as the victim being fired or promoted based on sexual conduct, or when a victim feels that it is necessary to quit the job to avoid the situation).
Sexual harassment may occur in a variety of circumstances, such as places of employment, educational institutions, business establishments, doctor’s offices, etc. The perpetrator is often, but not always, in a position of power or authority over the victim (due to differences in age, or social, political, educational or employment relationships) or expecting to receive such power or authority in form of promotion. Harassment can be difficult to pin down, but may have characteristics such as:
- The perpetrator can be anyone, such as a client, a co-worker, a teacher or professor, a student, a friend, or a stranger.
- The victim does not have to be the person directly harassed but can be a witness of such behavior who finds the behavior offensive and is affected by it.
- The place of harassment occurrence may vary from school, university, workplace, and other.
- There may or may not be other witnesses.
- The perpetrator may be completely unaware that his or her behavior is offensive or constitutes sexual harassment or may be completely unaware that his or her actions could be unlawful.
- The incident can take place in situations in which the harassed person may not be aware of or understand what is happening.
- Adverse effects on the victim are common in the form of stress and social withdrawal, sleep and eating difficulties, overall health impairment, etc.
- The victim and perpetrator can be of any gender.
- The perpetrator does not have to be of the opposite sex.
- The incident can result from a situation where the perpetrator thinks they are making themselves clear, but is not understood the way they intended. The misunderstanding can either be reasonable or unreasonable. An example of unreasonable is when a woman holds a certain stereotypical view of a man such that she did not understand the man’s explicit message to stop.
Conduct that constitutes sexual harassment can be verbal, physical, or non-verbal and can include, but is not limited to:
- Actual or attempted rape or sexual assault.
- Unwanted pressure for sexual favors.
- Unwanted deliberate touching, leaning over, cornering, or pinching.
- Unwanted sexual looks or gestures.
- Unwanted letters, telephone calls, or materials of a sexual nature.
- Unwanted pressure for dates.
- Unwanted sexual teasing, jokes, remarks, or questions.
- Referring to an adult as a girl, hunk, doll, babe, or honey.
- Whistling at someone.
- Cat calls.
- Sexual comments.
- Turning work discussions to sexual topics.
- Sexual innuendos or stories.
- Asking about sexual fantasies, preferences, or history.
- Personal questions about social or sexual life.
- Sexual comments about a person’s clothing, anatomy, or looks.
- Kissing sounds, howling, and smacking lips.
- Telling lies or spreading rumors about a person’s personal sex life.
- Neck massage.
- Touching an employee’s clothing, hair, or body.
- Giving personal gifts.
- Hanging around a person.
- Hugging, kissing, patting, or stroking.
- Touching or rubbing oneself sexually around another person.
- Standing close or brushing up against a person.
- Staring at someone.
- Sexually suggestive signals.
- Facial expressions, winking, throwing kisses, or licking lips.
- Making sexual gestures with hands or through body movements.
Some examples of VERBAL sexual harassment include:
- Referring to an adult as a girl, hunk, doll, babe, or honey
- Whistling at someone, cat calls
- Making sexual comments about a person’s body
- Making sexual comments or innuendos
- Turning work discussions to sexual topics
- Telling sexual jokes or stories
- Asking about sexual fantasies, preferences, or history
- Asking personal questions about social or sexual life
- Making kissing sounds, howling, and smacking lips
- Making sexual comments about a person’s clothing, anatomy, or looks
- Repeatedly asking out a person who is not interested
- Telling lies or spreading rumors about a person’s personal sex life
Some NON-VERBAL examples include:
- Looking a person up and down
- Staring at someone
- Blocking a person’s path
- Following the person
- Giving personal gifts
- Displaying sexually suggestive visuals
- Making sexual gestures with hands or through body movements
- Making facial expressions such as winking, throwing kisses, or licking lips
PHYSICAL examples of sexual harassment may include:
- Giving a massage around the neck or shoulders
- Touching the person’s clothing, hair, or body
- Hugging, kissing, patting, or stroking
- Touching or rubbing oneself sexually around another person
- Standing close or brushing up against another person
TYPES OF SEXUAL HARASSMENT
There are two types of sexual harassment that are actionable under the law, ‘quid pro quo’ harassment or harassment that creates a ‘hostile work environment.’
Quid Pro Quo Harassment
Literally meaning “something for something,” quid pro quo harassment takes place when an individual requires the victim to participate in sexual behavior in order to gain some advantage in the workplace, or to avoid some consequence; for example, having sex in order to get a promotion. The Rape Incest and Abuse National Network ( RAINN.org) estimates that only about 5% of sexual harassment cases take the form of quid pro quo situations. Though less pervasive, they are far more damaging to victims causing loss of employment, loss of self-esteem, emotional trauma and stress, physical manifestations of stress, depression, loss of appetite, and sometimes alcohol or drug use.
Hostile Work Environment
Hostile work environment cases make up the other 95% of cases involving sexual harassment. A hostile work environment is created when sexual behavior on the part of the perpetrator becomes so bad that it can cause the victim’s work performance to suffer, cause emotional distress, or even force the victim to quit his or her job.
Conduct that constitutes a hostile environment may differ from workplace to workplace. For example, it would hardly be fair to hold a strip club to the same standard as a law firm, although a strip club could still harbor a hostile environment if management took no action to prevent the dancers from unwanted attention outside of their normal job routine. For example, if a club had a strict “no touch” policy, allowing bouncers or bartenders to persist in unwanted touching could constitute a hostile environment. Moreover, the sensibilities of the most sensitive employee are not the standard—the conduct must be objectionable to any reasonable person.
However, an employer is not allowed to tolerate a hostile environment merely because one sex dominates a department or job function. An employee is entitled to an environment free of lewd, inappropriate behavior; such as sexually derogatory jokes and obscene materials, especially in public areas.
Recently, some males in all male workplaces have made claims of hostile environment, often because they became uncomfortable with the sexual banter common in a department and were further denigrated for not joining in such behavior.
There is no universal standard as to what constitutes a hostile environment, and cases with very similar situations have been decided differently. Moreover, the standard of finding the employer liable is very high—the plaintiff must show that the employer was actually aware of the behavior, or should have been aware of it under reasonable circumstances. It is also not enough to show that sexually suggestive behavior occurred—the plaintiff must show that the employer could have taken reasonable steps to stop the behavior. For example, the employer could not be held liable for such behavior if it occurred at a bar after work.
A caveat, however; if the comments are made by a supervisor to a subordinate outside of work and they carry negative impact over into the workplace, the subordinate may make a claim for harassment, based on a hostile work environment.
Sexual harassment may also lead to additional causes of action for retaliation. Where an employee victim brings the inappropriate behavior to the attention of supervisors or management and then is subject to derogatory comment, negative consequences or outright termination, a claim for retaliation can yield significant results in a subsequent lawsuit.
The law clearly prohibits an employer from making employment decisions based on an employee’s participation in a lawsuit for harassment against the employer, and damages for such conduct can be substantial.
Stephen Danz has been protecting the rights of employees across California and around the globe for decades. He has considerable experience in handling cases of sexual harassment and retaliation. With offices all over the state, he regularly travels from San Diego to Northern California meeting with clients and attending court hearings and settlement conferences. He can arrange to meet with you at a location that is convenient to where you live or work. Stephen and one of his associates will sit down with you to discuss the facts of your case, outlining any possible causes of action you might have and explaining the potential outcomes. Ideally, you should meet with Stephen for a free consultation before you approach your managers or supervisors so that you can proceed with a full knowledge of your rights and a plan on how to collect the evidence you will need to successfully pursue your case.
Contact our offices today on our toll free number (877) 789-9707, or use the Contact form on our website to schedule a free consultation. All of our scheduling is done through our Los Angeles office, but as mentioned, Stephen will meet with you where ever you are located throughout the state.
We look forward to defending your rights.