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What Is Considered Sexual Harassment in the Workplace?
Sexual harassment is any kind of sexual discrimination that violates Title VII of the 1964 Civil Rights Act and California’s Fair Employment and Housing Act (FEHA). The more obvious and noticeable forms of sexual harassment include things like inappropriate touching or requests for sexual favors.
In the workplace, this type of harassment usually falls into one of two categories, and either can sometimes be challenging to recognize or define:
- Quid pro quo sexual harassment. This involves someone having power over someone else (such as an employer over an employee or a supervisor over a subordinate) and demanding sexual activity in exchange for granting better opportunities, raises, or promotions, or even just to ensure the employee or subordinate can keep their job.
- Hostile work environment. This means a work environment that makes someone uncomfortable due to unnecessary touching, comments of a sexual nature or related to appearance and unwelcome to the recipient, offensive jokes, sexually explicit comments or pictures placed in the workplace, or something that could cause an employee to quit the job because the workplace is intolerable. It should be noted that a situation involving quid pro quo sexual harassment can turn into a hostile work environment, so both forms of harassment may be present.
Is an Employer Allowed to Ask About the Harassment Victim’s Past Sexual History?
The overall answer to this is no; the employer is not allowed to ask about someone’s sexual history. However, it’s possible that the employer may try to get a court order allowing them to ask those questions as part of their defense. However, for them to do that, they have to prove that there are specific facts showing good cause for the request and that the information is relevant to their defense. These are difficult hurdles to overcome in these cases.
Understandably, a victim could have concerns about what parts of their private life might end up public when filing sexual harassment claims. That’s one reason that working with an experienced employment law and sexual harassment attorney is crucial to help the victim understand what the employer can and can’t do.
What Is the Statute of Limitations for Filing Claims of Sexual Harassment in the Workplace in California?
A statute of limitations is the legal period in which someone must file claims. If they don’t file claims by the end of the statute of limitations, it’s nearly impossible to pursue claims later. The court would likely dismiss the claims as being too late.
In California, the statute of limitations for filing claims for workplace sexual harassment on a state level is three years from the date of the most recent instance of harassment. The victim must file an official complaint with the California Civil Rights Division (CCRD).
Some claims may merit filing complaints at the federal level with the Equal Employment Opportunity Commission (EEOC). The EEOC generally has a shorter period for filing claims, requiring filing to be done within 180 days of the most recent instance of harassment. However, if the victim also files a complaint with the CCRD, the federal limitation may be increased to 300 days.
Once the CCRD and/or the EEOC investigate and determine there are grounds to proceed with the claims, they’ll issue a right-to-sue letter to the victim, who then has one year from that date to file a formal lawsuit in court.
Most commonly, the victim will retain an attorney to represent them who will obtain an “immediate right-to-sue letter” – meaning the victim and their attorney will proceed directly to a lawsuit to get the process moving faster.
What Is Needed to Prove Sexual Harassment in the Workplace?
Proving sexual harassment in the workplace can be complicated, and it’s best to work with an experienced attorney who can help you understand the evidence you need and what will or won’t help your case.
- Generally speaking, a sexual harassment victim needs to prove one or more of the following to have a successful case:
- The victim was subjected to unwanted and offensive conduct in the workplace, or;
- The employer knew or should have known about the alleged harassment, but the employer didn’t take steps to correct the harassment or stop it from happening again;
- The victim was subjected to adverse employment actions (like being terminated, denied promotion or a raise, etc.) because they refused any requested sexual conduct, and;
There are numerous ways one or all of these can happen, and there are also numerous ways to document them. Someone concerned that they’re experiencing sexual harassment in the workplace should keep detailed notes about who was involved, what happened or was said, and when and where the harassment occurred. Whenever possible, evidence such as emails, texts, voicemails, or eyewitness testimony should be preserved for use in the claim.
When harassment begins, the victim should immediately notify the employer in writing and ask for assistance to stop the conduct from continuing. If the employer has workplace policies in writing, a copy should be preserved in the event that a claim is filed. Maintain any correspondence with anyone at the employer (supervisor, HR, etc.) about the harassment. Documentation of employment contracts that specify rights and responsibilities can be helpful, too.
What Should I Do if I Need to Pursue Sexual Harassment Claims in the Workplace in California?
Call Odell Law, PLC at 949-771-8173 for a free consultation. Facing sexual harassment in the workplace can be traumatizing and demoralizing, and pursuing claims can be overwhelming. I and my team of experienced, knowledgeable employment law staff understand how difficult this is for you. We’re here to help you determine the best approach to your case and will work for the best possible outcomes.
