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Employment - Other
STATE AND FEDERAL LAWS PROHIBIT SEXUAL HARASSMENT
California employees are protected from unlawful harassment in the workplace under both Title VII of the Civil Rights Act of 1964 ("Title VII") [42 U.S.C. 2000e et seq.] and California's Fair Employment and Housing Act ("FEHA") [Gov. Code 12900 et seq.]. An employee usually chooses to sue under either Title VII or FEHA in state or federal court - although it is usually to an employee's advantage to sue under FEHA in state court. The FEHA applies to any employer with 5 or more employees, and all employers are subject to harassment claims under the FEHA.
Sexual harassment falls into two categories of conduct:
"Quid Pro Quo" sexual harassment - meaning an employee's subjection to sexual conduct is linked to the grant or denieal of job benefits, such as getting or retaining a job, or receiving a favorable performance review or promotion - e.g., if a male restaurant manager tells a female waitress that he won't schedule her for the most lucrative paying shifts unless she agrees to sleep with him, this would be "quid pro quo" sexual harassment;
"Hostile Work Environment" sexual harassment - meaning the sexual conduct had the purpose or effect of unreasonably interfering iwth an individual's work performance or creating an intimidating, hostile or offensive work environment. - e.g., a workplace where men make crude jokes, put up posters of women in sexually revealing clothing (or no clothing), view and distribute "dirty" pictures by email, and refer to women in vulgar language would be "hostile work environment" sexual harassment.
AVAILABLE REMEDIES TO AN EMPLOYEE SUFFERING SEXUAL HARASSMENT
The remedies for violation of Title VII or the FEHA may include one or more of the following:
- Backpay (lost past wages);
- Reinstatement;
- Front pay (lost future wages);
- Injunctive relief;
- Reasonable attorney fees and costs of litigation;
- Compensatory damages for pain and suffering;
- Punitive damages [available if a private employer acted with malice or reckless indifference to an individual's legal rights].
FACTORS THAT STRENGTHEN AN EMPLOYEE'S CASE FOR UNLAWFUL DISCRIMINATION
In our experience, the following factors can strengthen (or weaken) a person's case for sexual harassment:
- The willingness of eyewitnesses to the unlawful acts to agree to provide a signed statement supporting your case. For instance, if one of your former co-workers is willing to sign a statement under penalty of perjury that he/she personally witnessed your supervisor sexually harass you by rubbing your shoulders, that would be strong evidence supporting your case;
- The existence of letters, emails, or other correspondence that supports your claims. For instance, if you have a printed copy of an email from the person that harassed you saying "this is your last chance to save your job and go out with me Friday night," that could be strong evidence supporting your claim for sexual harassment;
- Prior disciplinary issues documented in your personnel file [this may weaken your case unless the discipline was issued for pretextual reasons];
- Litigation against multiple former employers [this may also weaken your case].
We EMPHASIZE that all cases involve unique sets of facts and circumstances, and you should feel free to call us for a free case evaluation NO MATTER if any or none of the above factors apply to you or your case.
