It is unwanted;
The harassed is truly harassed;
And it is either “severe or pervasive” as the Calif. Supreme Court ruled.
California employers have a legal duty to make sure the workplace is free of sexual harassment, have a policy against it and have a procedure for reporting it.
California employers also have a duty to investigate complaints of sexual harassment and make the conduct stop. California employers are strictly liable for sexual harassment in the workplace and the harasser can be personally liable as well.
Sexual harassment can consist of many types of behavior, including but not limited to, improper touching, dirty jokes, pornography, improper staring, comments, requesting to date or have sex with, etc.
Employers of 50 or more employees must require supervisors to attend training seminars regarding sexual harassment in the workplace every two years and employers must post notices regarding sexual harassment policies at the workplace and notify all employees of their rights and procedures with regard to sexual harassment claims.
Sexual harassment lawsuits can be very expensive. All employers should take such conduct very seriously and consider having a zero tolerance policy. Certainly, if there multiple claims of sexual harassment against the same employer, such a pattern can be devastating to the employer’s defenses in a lawsuit.
Employees who are sexually harassed are advised to inform the harasser that they do not like the conduct and demand that it stop. Also, they are advised to report the conduct to their supervisor or a qualified Human Resources employee. They are further advised to keep a record of any sexual harassment and any retaliation after they reported it. It is unlawful to retaliate against an employee because he/she complained about sexual harassment in the workplace.
Sexual harassment claims may be brought by females or males, transgenders, homosexuals, etc.
Employers may be wise to retain the services of an employment law attorney to investigate any claims of sexual harassment to provide a neutral point of view and to help train or inform employees of the laws regarding sexual harassment, how to prevent it, what to do if it occurs, etc.
Not all sexual harassment lawsuits or claims are solid. Some cases involve an employee who claims to have been sexually harassed after going along with the requests/conduct for some time and then claiming to be retaliated against for breaking it off. Such a situation makes the claim more difficult since the law requires that the harassed actually was harassed, did not invite or willingly go along with it, etc. But, once an employee demands that sexual harassment stop, and the harasser does not stop, a case may arise from such conduct. All sexual harassment cases are different because each has its own set of facts, evidence, witnesses, etc.
Claimants of sexual harassment will be analyzed about their own behavior which, if it shows that he/she wanted the conduct, enjoyed it or was the initiator, can complicate or even devastate the case. Example: Female employee goes to work and shows the male employees photos of herself in a bikini. She flirts with them, touches them on their shoulder, back, etc. then decides a few months from then that she has been sexually harassed because one of them asked her out on a date a few times. She rejected his request for dates, but continues to flirt with the other male employees and texts dirty jokes to them and more photos of herself in bikinis, short shorts, etc. which they share with the employee who she won’t date. In that particular case, the jury’s verdict was that the female was sexually harassed at work because she said no to the date requests and he continued to ask, but that her damages were zero because of her own conduct. The jury basically did not like, respect or trust the claimant and did not want her to get any money from her lawsuit.
Another example is a case where a female employee enjoys talking about her new breast implants in front of all employees and exposes her breasts to an older man who requests that she do so. The man who requested to see the employee’s breasts has had several sexual harassment claims against him – all of which the company settled out of court. Employee hires a labor law attorney to represent her in her own claim of sexual harassment against the alleged serial sexual harasser. Even though this employee’s claim is weakened by her own unprofessional conduct, the company settles to avoid a lawsuit against the employer due to the pattern of sexual harassment allegations against the same employee.
Cases can involve same sex sexual harassment. Examples: A gay employee harasses another gay (but closet gay) employee about his/her sex life, refusal to come out as gay, etc. Or an employer who fires an employee because he/she refuses to engage in sexual activity with the employer or supervisor or co-employee, etc.
There are many cases in which million dollar verdicts are rendered in cases where an employee had to suffer either severe sexual harassment (rape, inappropriate touching, etc.) or pervasive sexual harassment where the place of work is hostile because of the ongoing culture or practice of unlawful sexual harassment.
In summary, each case must be analyzed by its own facts, witnesses, evidence, etc.
Kristine S. Karila, Attorney-at-law represents employees and employers with regard to claims of sexual harassment. (949) 481-6909.
Copyright 2015 Law Office of Kristine S. Karila/Labor and Employment Attorney.