Archives for December 12, 2022

​The Legal Rights of Victims of Sexual Harassment​

Sexual harassment in the workplace happens more often than many people realize. It’s a real problem in many different industries. Unfortunately, many employees, victims, and witnesses are unaware of their rights regarding sexual harassment in the workplace. Everyone must know they have legal rights and protections under state and federal laws. As a result, employers who violate these laws can face extreme consequences.

If you are the victim of workplace sexual harassment, you have the right to seek legal help. In fact, it’s usually in your best interest to reach out to an experienced employment attorney to learn more about those rights and how you should exercise them at this point in time. 

What is Workplace Sexual Harassment?

What is Workplace Sexual Harassment?

Under California’s Fair Employment and Housing Act (“FEHA”), sexual harassment is a form of sex discrimination that violates federal law. Workplace sexual harassment occurs between people of the same or different gender.

It can also happen between, among others:

  • Coworkers
  • An employee and a client or customer
  • An employee and their supervisor
  • An employee and a delivery driver

Workplace sexual harassment can happen in a wide range of environments, including in the workplace, at work-related events outside the workplace, such as an employee luncheon, or during work travel.

Two categories of unlawful workplace sexual harassment exist:

  • Quid pro quo: Means “this for that” in Latin. This type involves behavior that an employee must endure as a condition of their employment. It’s a type of harassment that can include a supervisor pressuring or coercing an employee to engage in sexual acts in exchange for ongoing employment, a promotion or a raise, more favorable hours or shifts, time off, or even a positive review.
  • Hostile work environment: The other type of workplace sexual harassment occurs when the conduct is deliberate, recurring, severe, and/or pervasive, so much so that it impacts an employee’s ability to perform their job as they should. Examples of a hostile work environment include a colleague making sexually offensive jokes, comments, or insults or sharing offensive images within the workplace— either in person or electronically.

Examples of workplace conduct that can be types of sexual harassment include:

  • Inappropriate comments about another person’s body or appearance
  • Unwanted requests for dates or sexual favors
  • Using sexual orientation-based or gender-based slurs
  • Making fun of an individual or all people of a particular gender or sexual orientation
  • Offensive, vulgar, or explicit jokes about sex or sexual acts. Note: Even if they aren’t speaking to or about you specifically but another group of people or gender, it’s still considered sexual harassment.
  • Sending or sharing texts, other messages, or emails of a sexual nature
  • Gossiping about another person’s relationships or sex life
  • Unwelcome or inappropriate touching of any clothing, body part, face, or hair, up to and including hugging, kissing, or assault
  • Blocking someone’s movement

Everyone has rights within the workplace, especially those facing sexual harassment.

Victims of sexual harassment have the right to:

Work in a safe environment, free from discrimination.

Employers are required under federal and state laws to provide a safe working environment. The working environment can’t be “hostile” to you due to your sex or gender identity.

Stay informed regarding your company’s sexual harassment policies.

You have the right to know about the sexual harassment policy that applies at work, including how to report sexual harassment, in a way that you can understand.

For example, in California, by state law, employers must have a written harassment policy and ensure that every employee knows the policy exists and receives a copy. The policy must also be written in a language that their employees understand.

Talk about or speak out against workplace sexual harassment.

Whether it’s happening to you or another person at your workplace, you have the right to talk about sexual harassment or discrimination that’s occurring at work to whomever you want. This includes your coworkers and your supervisor.

You also have the right to inform your employer reasonably that you think a policy or practice perpetuates or cultivates harassment or if a manager is behaving in a harassing or discriminatory manner. It’s illegal for your employer to retaliate against or punish an employee for discussing harassment or discrimination with their coworkers.

Report the harassment to human resources or your supervisor.

You have the right to report sexual harassment or discrimination to your employer’s human resources department, your supervisor or manager, or another person at your company who has authority. It’s best to make the report in writing (via email or letter) and retain copies so that you have proof that you made a complaint if you need it later. Always report sexual harassment to your employer first if you think you might want to pursue legal action later. 

Protest or picket against sexual harassment or other types of discrimination.

You can also get together with one or more of your coworkers to express concerns regarding your wages, pay, or working environment. This is called engaging in concerted activity, and it has legal protections under the National Labor Relations Act.

Have your complaint taken seriously and an investigation opened into your harassment.

Under state and federal laws, your employer must take all sexual harassment complaints seriously and investigate them. Once employers are aware of the possibility of sexual harassment, the law requires them to take quick action to end it and adequately protect you or the person who is experiencing the harassment.

Ask your employer what happens and who will know if you file a sexual harassment complaint. Understandably, you might want your complaint to remain confidential.

However, you need to be aware that an investigation typically involves interviewing:

  • The accused harasser
  • The person making the harassment complaint
  • Other employees who might be potential witnesses to the harassment

Unfortunately, there are no guarantees that your complaint will remain confidential. However, you have the right to find out what happens once you lodge a formal complaint and who else might find out the details of your complaint.

File a lawsuit against your employer.

In order to file a lawsuit against your employer in California, you might first have file charges with the California Civil Rights Department (“CRD,” formerly the DFEH), and obtain a Right to Sue. There are strict deadlines for the number of days you have after receiving the notice to file a lawsuit in civil court.

Do nothing.

It might seem ironic, but you also have the right to do nothing about the harassment you are experiencing. It’s an acceptable and personal choice not to take action about the sexual harassment or assault you experience. It’s entirely your decision if you come forward about your experiences or not. However, in doing so, you may be helping other people come forward with their own stories or protect other people who are also facing harassment or might in the future.

If you lose your job or experience other types of retaliation for doing any of the above, it’s illegal. You also have the right to take legal action against it.

Retaliation not only includes termination but also:

  • Demotions
  • Reducing your wages
  • Switching your shifts, hours, benefits, or duties
  • Being asked to take time off
  • Any other action that has a negative impact on you

What Can Employees Do to Protect Themselves?

Employees facing sexual harassment in the workplace should keep accurate records of incidents, including dates and times and other descriptive details, such as anyone who witnessed what happened. This information will be helpful for the state, federal agency, or an employment attorney should the employee decide to exercise their rights and seek action.

If you decide to pursue legal action, there are various types of “remedies” you can ask for in court. Every workplace sexual harassment case is different. However, here are some frequent examples of remedies you might receive if you’re successful in winning your lawsuit or reaching a settlement.

Compensation for lost income and other economic losses.

Suppose the sexual harassment you experienced resulted in a loss of work or income— for example, you were forced to take a leave of absence, lost work hours, were fired and didn’t have an income for some time, or lost your job and have not found another one that compensates you as much. In that case, you deserve compensation for those things.

You also have the right to pursue compensation for costs related to any medical or health treatment you required or will need going forward because of sexual harassment or any retaliation you experienced.

Compensation for physical pain or suffering and emotional distress.

This can include mental anguish, anxiety, stress, pain and suffering, loss of sleep, loss of enjoyment of life, and damage to your reputation resulting from sexual harassment.

Punitive damages.

If you file a lawsuit and prove that your employer acted with malice or showed reckless indifference to your employee rights, you might get the court to order your employer to pay you punitive damages. These damages aim to punish especially bad employers and send a warning message to other employers not to do what your employer did.

Why You Should Contact an Experienced Employment Lawyer

There are many reasons you may want to speak with an employment lawyer.

Consider seeking legal help if:

  • You believe you are the victim of workplace sexual harassment
  • You have questions about your rights at work
  • You think you experienced retaliation for exercising your rights at work
  • You report workplace sexual harassment, but nothing happens

Even if you just feel like something is off or not right, it never hurts to check in with an experienced employment lawyer. The sooner you do so, the sooner you can take legal steps to stop any wrongs against you.

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