The #Me Too movement has exposed the reality that, despite the fact that federal and state laws prohibit sexual harassment, an alarming number of women are harassed in the workplace. The Fair Employment and Housing Act specifically prohibits sexual harassment in the workplace. Sexual harassment creates a hostile, offensive, humiliating, distressing work environment, interferes and undermines the victim’s self-esteem and personal sense of well-being, disrupts the victim’s emotional tranquility and adversely affects her ability to competently perform his/her job.
Harassing conduct may include any of the following:
Verbal harassment, such as obscene language and gestures, demeaning comments, slurs, threats and/or unwelcome comments of a sexual nature about the Plaintiff or others; or
Physical harassment, such as unwanted touching, assault (attempting to touch an employee without her consent), or physical interference with normal work or movement; or
Visual harassment, such as using or displaying offensive objects, posters, cartoons, or drawings; or
Unwanted sexual advances; or
Excessive looking at someone's private body parts, smiling at someone's private body parts, or
Giving unwanted gifts/presents.
Not all conduct is considered “sexual harassment”. In order for a sexual harassment claim to be legally viable, the sexual harassment needs to be either “severe or pervasive". This means conduct that alters the conditions of employment and creates a hostile or abusive work environment.
In determining whether the conduct was severe or pervasive, the trier of fact shall consider all of the factual circumstances and may consider any or all of the following:
The nature of the conduct;
How often, and over what period of time, the conduct occurred;
The circumstances under which the conduct occurred;
Whether the conduct was physically threatening or humiliating;
The extent to which the conduct unreasonably interfered with an employee's work performance.
Employer liability depends on whether the harasser was a “supervisor” or an employee in a nonsupervisory position, such as a co-worker. Under California law, an employer is strictly liable for sexual harassment if the harasser was a supervisor. However, if the harasser was an employee who was not in a supervisory or managerial position, the employer will be liable only if the employer knew or should have known that the nonsupervisory employee engaged in sexual harassment but did nothing about it.
“Supervisor” is described as an individual who has the discretion and authority:
To hire, transfer, promote, assign, reward, discipline, or discharge an employee or to participate or recommend any of these actions;
To resolve complaints and/or grievances of other employees or to participate or recommend action or complaints on grievances; or
To instruct employees and direct their activities, such as determining work schedules, work hours, work placement, work duties, etc.
Once an employer has become aware of the sexual harassment, it has an obligation to take all reasonable steps necessary to make the sexual harassment stop and to take steps to prevent sexual harassment from occurring. This means the employer must conduct a prompt and impartial investigation into the sexual harassment complaint, and if it finds that the victim was sexually harassed, it must remedy the situation. The employer must also make sure that it communicates to its employees that it has a “zero tolerance” policy towards sexual harassment in the workplace by advising its employees of its strong disapproval of sexual harassment, informing its employees that they have the right to submits complaints of sexual harassment confidentially and without fear of retaliation, and instructing them on how to submit such claims.
Our law firm has litigated numerous sexual harassment cases. If you or someone you know has been the victim of sexual harassment, do not hesitate to contact us for a free consultation to meet with you to discuss your concerns and provide you with legal options.
SEXUAL ORIENTATION DISCRIMINATION
Sexual orientation discrimination occurs when an employee suffers an adverse employment action because of the person’s sexual orientation (homosexuality, bisexuality, heterosexuality). For example, if an employee who is gay is treated differently than his co-workers -- is unfairly passed over for promotion, or is demoted, or his/her work hours are cut, or receives an unfair performance evaluation, or is excluded from meetings and training, or is suspended, or is fired -- that employee may have a viable claim for sexual orientation harassment if the reasons for the adverse employment actions were because of the employee’s sexual orientation.
Sexual orientation discrimination can also occur when an employer perceives the employee is gay, even if he/she is not, and, based on the mistaken belief that the employee is gay, takes an adverse employment action against that employee. It is also unlawful to discriminate against someone who is associated with someone who is gay. For example, if an employee is the child of parents who are gay, he/she may have a claim against the employer if the employer knew and acted in a way that negatively impacted the employee’s job.
A related type of unlawful discrimination is transgender discrimination. Some individuals do not identify as male or female. California law protects non-gender conforming individuals who do not identify with the sex they were assigned at birth and who express their identity through dress, behavior, voice and body language which is not stereotypically associated with their assigned sex at birth.
Transgender employees have the right to work in a work environment free of discrimination. For example, a transgender employee has the right to use a workplace restroom that corresponds to the employee’s gender identity regardless of the employee’s assigned sex at birth.
If you believe you have suffered discrimination in the workplace because of your gender identity, please contact us.
WE ARE HERE TO SERVE YOU
The workplace is like a family. In these busy times, we spend more time at work interacting with co-workers, associates, supervisors and managers than we do at home with our own family. So when something goes wrong at work, it affects us deeply. While an employer has the resources to seek legal advice, the wronged employee often feels lost and does not know who to talk to for answers to a myriad of questions. Many times, the employee does not even know that what went wrong is a violation California law and that he/she has legal rights. If you have questions regarding workplace harassment, discrimination, retaliation or wage & hour issues, please do not hesitate to contact us for a free confidential consultation by calling us at (310) 472-8073 or submit an online form. We are here to help.