Sexual Harassment

The Speak Out Act and the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, both written into law in 2022, give employees more workers’ rights when they have been sexually assaulted or sexually harassed in the workplace. Both laws had bipartisan support and are the most significant legislative developments to come out of the #MeToo movement, paving the way for a more just workplace. 

Sexual harassment and assault remain pervasive in the workplace. One in three women has faced sexual harassment in the workplace during her career, and an estimated 87 to 94 percent of those who experience sexual harassment never file a formal complaint. Sexual harassment in the workplace forces many women to leave their occupations or industry or pass up opportunities for advancement. In order to combat sexual harassment and assault, it is essential that victims and survivors have the freedom to report their abuse and publicly disclose it, if they choose to.¹  For more information, reach out to a sexual harassment lawyer.

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How Can The Speak Out Act Protect Employees?

The Speak Out Act makes non-disclosure agreements (NDAs) and non-disparagement agreements unenforceable in sexual harassment and assault cases. This law applies only to agreements signed before the harassment or assault occurred. It also invalidates existing agreements in cases that have not yet been filed.

NDAs are often included as part of the new hire forms and employment contracts new employees are required to sign and often do not understand what they are signing. NDAs were originally created to protect proprietary information and intellectual property. However, employers have used NDAs to silence victims of workplace sexual harassment and keep misconduct from being exposed to coworkers and the public. 

Non-disclosure and non-disparagement provisions in agreements between employers and current, former, and prospective employees, and independent contractors, can perpetuate illegal conduct by silencing those who are survivors of illegal sexual harassment and assault or illegal retaliation, or have knowledge of such conduct, while shielding perpetrators and enabling them to continue their abuse. Prohibiting nondisclosure and non-disparagement clauses will empower survivors to come forward, hold perpetrators accountable for abuse, improve transparency around illegal conduct, enable the pursuit of justice, and make workplaces safer and more productive for everyone.¹

How Does Ending Forced Arbitration Help Employees?

Ending forced arbitration allows employees who are victims of sexual harassment and sexual assault to seek justice in civil court when they had previously been bound to a closed, often-secretive legal proceeding called arbitration. Employers forced workers into arbitration to keep matters out of the public eye and keep companies free from public scrutiny and accountability. Now, employees can expose if they want to file a lawsuit and expose the company publicly or not. It can also provide more leverage in settlement agreements. 

For more information and frequently asked questions regarding sexual harassment:

What is Sexual Harassment?

What is Quid Pro Quo?

Harassment based on gender, gender identity, or gender stereotyping, not related to sexual interest

What is Inappropriate Touching At Work?

Source

1. Congress.gov

Most people know what sexual harassment means and understand it is wrongful. However, some employees who experience sexual harassment can’t tell when it happens to them. 

If you believe you’re facing sexual harassment at work, it helps to review the other person’s actions, the frequency of these behaviors, and how they make you feel with an experienced San Diego employment lawyer. An experienced employment lawyer can provide advice and guidance on how to proceed. 

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What Is Sexual Harassment?

Sexual harassment is behavior directed at you that makes you feel awkward or uncomfortable. When sexual harassment happens at work, it can make your work environment feel unwelcoming and even intolerable. 

Both men and women can be targets of sexual harassment, with harassers also being either men or women. Sexual harassment in the workplace can happen to anyone, with harassers being supervisors, coworkers, or customers. 

Sexual harassment is unlawful, and several laws exist to protect victims. However, it is critical to not only understand the signs of sexual harassment, but also what sexual harassment is not. 

Sexual Harassment in the Workplace

The FEHA covers sexual harassment in the workplace in California, as this is a form of discrimination based on gender. The FEHA describes two types of sexual harassment: quid pro quo harassment and hostile work environment.

Quid Pro Quo Harassment

Quid pro quo means “in exchange for” or “a favor for a favor.” This type of harassment usually concerns supervisors or others in a position of power.

Quid pro quo harassment involves a higher-up asking for sexual favors or other sexual behaviors in exchange for a work benefit.

These benefits may include:

• Jobs
• Promotions
• Pay increases
• Favorable transfers

In the alternative, the harasser might put you in a position that makes it difficult to say no to the request because of potential consequences. For example, “sleep with me if you want this promotion.”

To establish quid pro quo harassment, it’s particularly helpful to have proof of your boss’s harassing communications or witness statements from individuals who can corroborate your claims.

Hostile Work Environment

A hostile work environment means the harasser’s unwelcome behaviors are so bad that they interfere with your work performance or create safety concerns for yourself. These actions can involve everything from catcalling to explicit comments and physical touching.

This type of sexual harassment can be a little more challenging to prove than quid pro quo harassment since some of the harasser’s behaviors can be subjective. Nonetheless, the right attorney can help you collect evidence and build your case. 

Signs of Sexual Harassment

Sexual harassment behaviors vary greatly. Your potential harasser may exhibit one or a mixture of the acts associated with sexual harassment. 

The list of potential behaviors that can constitute sexual harassment is endless, but the following are some of the most common. If you are experiencing or have experienced any of this conduct or any behavior aimed to make you feel objectified or uneasy, discuss your situation with an attorney as soon as possible. 

Unwelcome Physical Touch

Physical touch is one of the most significant actions that can be sexual harassment.

Some of the acts of physically touching you that may make you uncomfortable include:

• Laying a hand on the small of your back
• Touching your leg, thigh, or buttocks
• Trying to hold your hand
• Grabbing you in a restrictive or aggressive manner
• Purposely rubbing up on you
• Stroking your hair, body, or clothing

It helps to decipher the potential intent behind the person’s actions. Some behaviors are easier than others to identify as sexual harassment, while others are a little more ambiguous. For instance, someone may try to kiss you on the cheek or hug you because it’s a cultural thing, not because they’re attempting to make you feel weird.

If someone continuously touches you in an unwelcome manner, you can address it kindly and directly. If they disregard your feelings and continue to touch you, it is more than likely sexual harassment. 

Verbal Comments

Sexual harassment doesn’t just have to be physical, as it can be verbal as well.

Verbal sexual harassment can involve:

• Catcalling
• Calling you nicknames or pet names
• Comments about your body or physical appearance
• Sexually explicit comments
• Making sexual innuendos
• Spreading rumors
• Pressuring you to engage in sexual acts
• Jokes of a sexual nature
• Asking about sexual preferences or history
• Sharing sexual stories or fantasies

With verbal sexual harassment, the harasser may make these comments directly to you or involve others and make comments about you. These comments can make you feel uneasy, humiliated, or threatened and make your workplace a very difficult place to be. 

Nonverbal Sexual Harassment

Communication can be verbal and nonverbal, sexual harassment included. Sexual harassment doesn’t just have to involve physical touch or verbal communication. It can also include nonverbal acts to make you feel uncomfortable.

Some of the most common nonverbal sexual harassment behaviors include:

• Staring
• Sexually suggestive signals
• Facial expressions (winking, licking their lips, blowing kisses)
• Sexual gestures with hand or body movements
• Whistling at you
• Looking you up and down
• Inappropriately touching themselves while looking at you

These actions alone can make someone feel tense or self-conscious, especially if they occur repeatedly. 

Sexually Explicit Text Messages, Emails, Photos, or Videos

Written communication, whether in or out of the office, should remain strictly professional. When your harasser crosses the line and starts sending you non-work related messages, especially of a sexual nature, that is considered sexual harassment.

The situation escalates when they also include inappropriate photos and videos in your communications. Even simply showing you explicit photos and videos can be harassment. 

If your harasser sends you written or visual communication, your first instinct may be to delete everything. However, if possible, retain these pieces of communication, as they can be helpful to your future case. 

Stalking

In some serious cases, your harasser may take it outside of the office and begin stalking you.

Stalking involves many behaviors that are unsolicited and unwanted, which can include:

• Following you
• Repeated communication, like phone calls, emails, texts, and even giving gifts that are not work-related
• Showing up to your home or other location you frequent
• Threatening you
• Any other form of undesired contact

In the absolute worst cases, victims of stalking have to get protective orders against their stalkers. Stalking can be serious, sometimes even leading to serious physical harm. 

Pressure for Dates

Asking someone on a date isn’t necessarily a behavior associated with sexual harassment. However, that can quickly change if the individual does not stop asking you out or making you feel pressured to date them.

If a person has asked you out and you’ve clearly said no, they should leave the situation as is. If the same individual continues to ask or even gets mad when you refuse to go out with them, this is a form of harassment. 

Requests for Sexual Favors

Requests for sexual favors are common to quid pro quo sexual harassment from a boss, but they can also happen with any other individual, which can cause a hostile work environment.

Asking for sexual favors is more often than not followed by either a promise to do something if you comply, or a threat against you if you fail to follow through.

What to Do if Someone Sexually Harasses You

When you’re the target of sexual harassment, it can bring up plenty of unwanted feelings. You might feel bad about yourself, depressed, angry, stressed, and frustrated. You may also feel as though there is no out, especially if you genuinely enjoy your job or can’t afford to leave your position. 

It is important to know that you have options if you’re experiencing sexual harassment. You are not alone, and there is a way out, even if it doesn’t seem like it. 

If you’re the victim of sexual harassment or think you might be, the following steps can help you in your pursuit of justice. 

Collect Proof of the Harassment

Begin gathering evidence of sexual harassment as soon as possible. The more proof you have, the stronger your case against your harasser.

Some evidence that can strengthen your claim include:

• Communication with your harasser, including emails, texts, and voicemails
• Witness statements from others who have witnessed the harassment first-hand
• A detailed account of every harassment encounter

Additionally, when you formally report the harassment to your employer, you should retain copies of anything submitted as proof. This is especially helpful to prove you did, in fact, follow your company’s policy on reporting the harassment, but they did nothing to stop it.

Collect anything and everything you believe your attorney can use to build your case. 

Confront the Harasser

Some individuals feel comfortable enough confronting their harassers head-on about their behavior. You don’t have to be aggressive or defensive but can instead try to approach them in a calm and kind manner to avoid any negative situations. You may also consider having another person in the room as a witness to your interaction. 

If your harasser does nothing to stop their behavior, you can proceed to formally report their actions to your company. 

If you don’t feel comfortable discussing the situation with your harasser for fear of how they might react, do not feel obligated. 

Formally Report the Harassment at Work

Typically, companies have policies regarding sexual harassment and reporting these behaviors. Your employment lawyer can help you review your employee handbook for instructions.

In many situations, your lawyer can help you submit a written sexual harassment complaint to your Human Resources (HR) department. Your employer can then review your complaint and any evidence provided and conduct an investigation. 

File a Lawsuit

If your employer does not take appropriate action, you should consult a sexual harassment attorney about your options, including filing a lawsuit.  Before you file a lawsuit, you need to file a complaint with the CRD, formerly the DFEH, and obtain a Right to Sue. Your attorney can do this for you.

Legal Guidance for Sexual Harassment at Work – Do You Need an Attorney?

While you are not legally required to have an attorney help you with your sexual harassment claim, it is often the wisest choice. 

Sexual harassment cases can be challenging to navigate, but an employment lawyer has the right knowledge and skills to help you from beginning to end. Not only can an attorney give you peace of mind, but they can also help you reach the most favorable outcome for your case.

Therefore, if you believe you’re the victim of sexual harassment, do not hesitate to seek assistance from a qualified San Diego sexual harassment lawyer. You are already dealing with a stressful situation and serious concerns about your future. Allow an attorney to protect your legal rights.

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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. 

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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

Your Legal Rights Regarding Sexual Harassment in the Workplace

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.

What Might Happen if You Take Legal Action Against Workplace Sexual Harassment?

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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Daniel Zachary Dasko, a substitute teacher and volunteer hockey coach in San Diego, has been arrested and charged with violation of Title 18, U.S.C. 2252 (a)(2) Distribution of Images of Minors Engaged in Sexually Explicit Conduct. 

According to the Department of Justice news release, a review of Daniel Dasko’s iPhone revealed numerous conversations regarding child pornography using a social media application. Dasko was trading and producing images with another person who was identified as a teacher in the Philadelphia area. The teacher from Philadelphia and other coconspirators would pose as females on social media sites to chat with the victims.

They were baiting minor victims to send nude photos or videos, or to go live online and be screen-recorded. During a one-year period from October 3, 2020, to October 3, 2021, they exchanged over 3,671 messages, including numerous image and video files. The messages were conversations about sexually exploiting children they knew or met online.¹

As we searched for more information on this case, we noticed red flags based on our experience working with survivors. 

Red Flag #1 Dasko’s Employment History

Daniel Dasko’s file with the California Commission on Teacher Credentialing shows that for six years Dasko had a 30-Day Substitute Teaching Permit and a Certificate of Clearance but not a teaching credential.²

Renewing a substitute certificate six years in a row versus taking the test to become a full-time credentialed teacher is questionable for a few reasons. Substituting is typically used as a way for new teachers to get their foot in the door so they can hopefully get hired full-time by a district. There is a fee to renew the substitute certificate each year. Substitutes do not receive the benefits and security that full-time teachers have such as higher pay, tenure, seniority, and retirement benefits. 

According to Transparent California, Dasko worked as a substitute teacher at Del Mar Union Elementary, Encinitas Union Elementary, Rancho Santa Fe Elementary, Solana Beach Elementary, El Rancho Unified and San Dieguito Union High School Districts.³

Predators are often attracted to a specific age range. A benefit of being a substitute versus a full-time teacher is that substitutes choose which schools and classes they substitute for which gives them direct access to specific age groups. Substitutes can apply to several school districts at the same time. Moving from school to school, especially between different school districts, is a typical pattern of a predator.

According to Dasko’s LinkedIn profile⁴, he volunteered at Head Start by the Sea Encinitas as Teacher Support starting in July 2007. Dasko’s profile says he worked as a Marketing Intern at Webistan in the coordination of an international children’s photography contest. Dasko’s profile says he was a youth hockey coach at San Diego Ice Arena from Dec 2015 to the present.

Red Flag #2 Dasko’s Coaching History

Dasko was a volunteer coach for kids 12 years old and younger at the San Diego Ice Arena. Dasko’s USA Hockey Certification shows he was certified to coach 8 and under beginning 2015, 10 and under beginning 2018, and 12 and under beginning 2019.⁵

Predators volunteer for positions to gain access to kids. Coaching brings endless opportunities because there is a new influx of kids each season. You might wonder how abuse can happen in a situation where there is a team full of kids, multiple coaches, and lots of parents observing during practice. More than 90% of abuse is perpetrated by someone the victim knows. It begins with grooming, the act of slowly getting someone to let their guard down and trust you. Predators groom their victims and every bystander that surrounds their victims. This can include parents, coworkers, supervisors, and other kids. Predators cannot be successful at gaining access to kids if the adults do not trust them. When predators are exposed people are either in shock or complete denial. Predators are often referred to as the favorite teacher or coach. 

Athletes are particularly vulnerable to abuse because of the nature of sports. Athletes are taught to do what they are told and not complain. Coaches demand respect and conformity. Coaches decide who starts, who plays, who sits on the bench, and who advances to the next level. If a parent questions a coach’s behavior, it can have repercussions for their kids. When a coach offers to spend extra time or train one-on-one it seems too good to pass up. Athletic teams often travel and stay in hotels.

Red Flag #3

When CBS8 interviewed Joel Henderson, president of the San Diego Ice Arena Oilers Hockey Club, he said, “I’ve been doing this over 40 years and, in my program, I can never remember any case that I have ever had involving children being abused in any way.”⁶

Rarely will you catch a predator in the act of molesting kids. Predatory behaviors show up as pushing boundaries, communicating outside of school or practice, interacting on social media or video games, one-on-one time, giving rides to and from school or practice, nicknames exchanged, playful physical touching such as tickling or smacking bottoms, gift giving, taking pictures, or treating them differently than others.

What do Red Flags mean?

Red flags are behaviors that raise a question or suspicion and should be further evaluated when there are multiple red flags, patterns, escalation, or any type of disclosure. They are not necessarily evidence of any wrongdoing. 

Victims or anyone with information about this case is encouraged to call the FBI San Diego Field Office at 858-320-1800 or submit a tip at tips.fbi.gov. Tips can be anonymous.

If you would like to speak to an attorney to ask about your legal rights or obligations before contacting the FBI, call Haeggquist & Eck for a free and confidential consultation at 619-342-8000.