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Sexual Harassment: Basics, Abusive Conduct, & Retaliation

Basics of Sexual Harassment Law in California

Current law in California makes certain employment practices unlawful. These illegal practices include the sexual harassment of an employee directly by the employer or indirectly by agents of the employer with the employer’s knowledge. The law requires employers to ensure that the workplace is free from sexual harassment by posting sexual harassment information posters, making available sexual harassment information sheets, and taking steps to educate supervisors within six months of their assumption of a supervisory position. The training must include practical examples of how to prevent harassment, discrimination and retaliation in the workplace.

The most common examples of sexual harassment are:

(1) You are fired or denied a job or an employment benefit because you refused to give sexual favors or because you complained about harassment. Retaliation for complaining about harassment is illegal, even if it cannot be demonstrated that the harassment actually occurred.

(2) You quit because you can no longer tolerate an offensive work environment, referred to as a “constructive discharge” harassment case. If it is proven that a reasonable person, under like conditions, would resign to escape the harassment, the employer may be held responsible for the resignation as if the employee had been discharged.

(3) You are exposed to an offensive work environment. Exposure to various kinds of behavior or to unwanted sexual advances alone may constitute harassment.

If employees or job applicants believe they have been subjected to sexual harassment, they must, within one year of the harassment, file a complaint with the California Department of Fair Employment and Housing (DFEH). Along with filing the complaint, you may obtain a “right to sue notice” from the DFEH which will allow you to exercise your right to file a lawsuit under the Fair Employment and Housing Act.  See our site for helpful information.

Update: Sexual Harassment Training Must Now include Anti-Abusive Conduct Training

Effective January 1, 2015, AB 2053 amends Government Code Section 12950.1 to require California employers to modify their sexual harassment prevention training. Under the amended Section, California employers with 50 or more workers must include abusive conduct prevention training when they provide the mandated two hours of sexual harassment prevention training to all supervisors every two years.

Section 12950.1 defines abusive conduct as “conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests. Abusive conduct may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person’s work performance. A single act shall not constitute abusive conduct, unless especially severe and egregious.” However, abusive conduct or workplace bullying is not yet a cause of action. But, such behavior may eventually lead to charges filed against the abusive employer.

Retaliation in the Workplace: Protect Your Rights!

Under FEHA, it is unlawful to retaliate against anyone who (1) opposed prohibited activity such as sexual harassment or discrimination, (2) filed a complaint, or (3) testified or assisted in proceedings under FEHA. “Retaliation” means that you engaged in a protected activity (such as the three actions above), that you were subjected to a negative employment action (such as demotion or firing) as a result of that activity, and you suffered damages. If you believe that you experienced retaliation, do not wait or your claim may be barred by the court. Contact our office immediately at (877)789-9707 or read more about retaliation here.