The state and federal laws recognize two types of sexual harassment that are actionable: (1) Quid pro quo harassment and (2) hostile work environment harassment. Quid Pro Quo harassment claims can arise where submission to unwelcome sexual advances or requests for sexual favors is made a condition of employment or the receipt of employment opportunities. A Hostile environment claim arises where unwelcome verbal, physical, or visual conduct of a sexual nature unreasonably interferes with an individual's work performance or creates an intimidating, hostile or offensive working environment.
The Sexual Harassment Made It More Difficult to do My Job but I Still Got it Done. Do I have a Case?
The Notorious RBG concurred in a Supreme Court case titled Harris v. Forklift Systems, ruling that in a workplace harassment suit, "the Plaintiff need not prove that his or her tangible productivity has declined as a result of the harassment. It suffices to prove that a reasonable person subjected to the discriminatory conduct would find, as Plaintiff did, that the harassment so altered working conditions as to make it more difficult to do the job." This means that even if you are getting the job done, even if the quality of the work has not decreased, you may still have a claim so long as the working conditions have become difficult as a result of the conduct.
It Was a Single Incident, but I Still Feel Uncomfortable.
A single incident of harassing conduct is sufficient to create a claim for sexual harassment regarding the existence of a hostile work environment if the harassing conduct has unreasonably interfered with the Plaintiff's work performance or created an intimidating, hostile or offensive working environment. The key is the severity of the conduct and the employer's response. Further, a discriminatory remark, even if not made directly in the context of an employment decision or uttered by a decision maker may be relevant and this does not vary by workplace. This old idea that in some industries, like the restaurant industry, the conduct should be expected or is typical of the industry does not change the legal outcome of a sexual harassment case.
I know the Comment was just a Joke but I still Feel Uncomfortable.
Jokes, slang, epithets, jests or any other excuse does not then make the comment acceptable. The standard by which these cases are judged is not on the intent of the speaker but on the reception of the audience, intended or not. This is a common excuse we hear from Company management or executives who believe that what they said was never intended to offend anyone, but was only made as a joke. If the harassment was of such a nature that a reasonable person would find it offensive, you may have a case.
I Quit my Job Due to Harassment. Would I Still Have a Case?
Situations may exist where harassment makes an employee's working conditions so oppressive that a reasonable person in the employee's position would feel compelled to resign. An employee who does resign under such circumstances may argue that he or she has been constructively discharged. This means that the employee felt compelled to resign due to the hostile work environment or harassing conduct they were subjected to. In the eyes of the California State law, a constructive discharge is no different than a termination. At Miller Wilmers APC, we have found that this occurs more often where an employee resigns to avoid further harassment and are convinced that because they resigned, they lost their right to employment or bring a claim which is simply not true.
What If There Are No Witnesses When I Was Sexually Harassed at Work?
If no witnesses were present during the event, you must follow the Company policy when reporting your complaint. If the Company does not have a policy, be sure to inform a manager in writing, of the incident to maintain a record of events. In order to maintain a sexual harassment complaint, there must be some level of evidence to support your story, and this can include a self-reported incident to the Company. It is how the company responds that forms the basis of the Complaint.
How Do I Prove That My Employer Engaged in Sexual Harassment?
There are some elements that must be proven when you bring your complaint forward in a California Court.
- First the Conduct itself was targeted due to your sex or gender identity. Meaning it does not need to be sexual in nature but if you are a woman and the jokes are targeted towards women then there is a sexual harassment issue.
- The conduct was unwelcome. The actions taken by your employer, manager, coworker or any other agent of the Company must be unwelcome. This does not mean that you had to say "no" or to "stop" but it must be clear that you are not welcoming the conduct. Despite some popular belief, you are not welcoming the conduct simply by way of dress.
- The conduct is severe or pervasive. Your employer's sexual conduct must be either severe or pervasive. Severe conduct includes actions like rape or assault that are serious yet may be isolated incidences. Pervasive conduct involves examining an employer's behavior over an extended period of time in order to determine if his or her collective actions meet the state and legal standards for sexual harassment.
- The conduct is both objectively and subjectively offensive. Being objectively offensive means that a reasonable person in your situation would find your employer's conduct offensive. Being subjectively offensive means that you personally found your employer's behavior to be offensive. Both elements must exist in order to prove that your employer engaged in sexual harassment.
- Your employer's conduct resulted in actual damages. There must be actual damages suffered as a result of your employer's sexual misconduct. This may include economic damages, such as lost wages for missing work, or noneconomic damages such as emotional or physical distress.
Contact a California Employment Attorney
If you believe you have a claim, it is important that you contact a California Employment Attorney. Miller Wilmers APC is located in Los Angeles and handles cases all throughout California. If you are being subjected to sexual harassment at work, contact our office for a free consultation to determine the next steps moving forward with your case.
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