A sexual harassment lawsuit can expose an employer to millions of dollars from an employee’s lawsuit. In most cases, harassment of a sexual nature is clear and easy to identify. The majority of the time, the abuser or perpetrator of this behavior has focused their verbal abuse, actions, or behavior on one person. When this occurs, the victim possesses a lawful right to pursue charges for abuse and harassment.
By: Brad Nakase, Attorney
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If a situation occurs in which an employee is a victim of sexual harassment or witness it, it is essential that the employee file a written complaint as well as notify their managers/supervisors plus the human resources department. Indeed, in the state of California, the courts require an employee who has been a victim of sexual persecution to attempt to voice their concerns in statements, images, or writing. These documents should be presented to their supervisors or human resource departments as a way of documenting this important issue.
Now, there are also cases of sexual harassment that cannot be as clearly identified. These indirect forms of harassment can occur when a hostile work environment is created, and employers encourage or turn a blind eye to harassment, lewd behavior, gender favoritism, or other unwarranted advances. Sometimes these cases are wrapped up in “the culture of the office” or excused as jokes, but just because this behavior is subtle in nature does not mean it is not offensive and illegal. Anytime employees are subjected to behaviors that can create emotional and physical harm, there is immediate cause for concern. Plus, a hostile workplace that creates a breeding ground for sexual harassment in its many forms can irrevocably damage the attitude and tone of the office, breaking down any established team aesthetic and stalling productivity.
Under state and federal laws, as well as the EEOC, harassment of a sexual nature is defined in specific terms. Sexual harassment involves any and all unsolicited sexual acts or behaviors. These can involve the physical but also verbal and visual means. Sexual harassment can also involve the bartering or exchange system known as “quid pro quo,” in which sexual favors or behaviors are asked for or granted in exchange for work-related advantages. This behavior also involves favoritism and preferential treatment as related to sex and sexually related behaviors. The laws also relate to indirect harassment, which happens when an additional victim is impacted by the sexual misconduct—in any form—of another person.
Here are seven specific examples of unbecoming conduct in the workplace. All of these can be linked to sexual harassment in an indirect but no less offensive manner.
Often, employees are able and even encouraged to decorate their workplaces as they see fit. This can even improve the morale of the individual or the team. However, when employees or managers use inappropriate materials to decorate their workplaces, this leads to urgent problems. Other employees should not have to suffer because of an illicit picture or joke that they continually see. This behavior, which to some may seem innocuous, can be emotionally damaging and quickly inspire complaints by offended employees. It is up to the employer to make sure that the workplace is not decorated with any material that is at all sexual in nature. Rules should be initially established and carried out in order to ensure that this does not happen. All in all, offices and any communal spaces should stay free of written or visual sexual material, whether subtle and nuanced or graphic in nature. When workers see this type of material, it is warranted that they report sexual harassment, even if it appears indirect. The goal here is to create an inspiring work environment that is free and comfortable for all, not one that perpetuates offensive behavior and jokes, as well as gender inequality and stereotypes.
Unfortunately, workplaces all over are representative of the entire cross-section of society. Within both our society at large and our workplaces, there exist groups of employees—sometimes including superiors—who engage in conduct that is sexualized and offensive. Sometimes comments can be made directly, but other times they are simply overheard. Either way, when an individual hears a graphic, offensive, or vulgar joke, story, or anecdote, they are being victimized. This is true even if the joke was not directed at the individual or the person was not meant to hear it; those conditions simply do not matter.
The responsibility, in this case, falls on the employer. They must ensure that the workplace is free from statements like this that can contribute to sexual harassment of any kind. Even in the case that these materials were “private jokes” or not intended to offend anyone, the office and workplace are public places that must be made suitable for all workers. Though the employer can be found culpable in this matter, it is also integral that the employee who feels victimized or offended clearly states that the graphic statements or stories are unwelcome. This should be put in writing so it will be noted for the record in case legal action occurs.
While it is true that verbal evidence can be used in sexual harassment cases, and therefore verbal testimony from an employee, written statements help create a much stronger case. In the event that the employer retaliates against any complaints involving harassment, a written statement provides strong documentation and hard evidence. This proof is invaluable, and every employee should know that if they are made to feel uncomfortable or violated in any way, they should write it down and make a note of it. The nature of the complaint should be direct but also keep an even tone. The complaint should be well-written and not an angry rant; this will also strengthen the case and testimony. Every employee should be able to work in a place where they not only feel accepted but they are free from discrimination and harassment. Jokes do not need to be offensive and harmful, and humor has its place in the workplace. But it should never be confused with sexual harassment.
While humor can lighten up some of those stressful workdays, offensive gestures only make everyone in the workplace uncomfortable. When humorous stories, jokes, and gestures include sounds or noises that relate to sex, this creates an offensive climate in the workplace and can lead to even more unpleasant and inappropriate behavior.
Under California law, as well as federal law, the practice of making rude sexual comments or lewd gestures is sexual harassment. If an employee notices that these acts are taking place, they and others are probably already being victimized. Sometimes, employees are unsure where the line is between a joke and sexual harassment. They must know that unwelcome conduct occurs when the victim is offended and does not encourage it or participate in it.
Individuals who feel offended should utilize common sense. They should always voice their objections firmly and evenly and make sure to write everything that occurred down in order to make a note of it and keep it for the record or in case there is further legal action. When an employee feels that they have been harassed, it is strongly recommended that they contact an employment attorney for guidance, support, and help, as well as strategic counsel and advice regarding what to do next.
Realistically, some employees do engage in the exchange of sexually explicit material while at the workplace. While this is frowned upon—and for a good reason—sexual harassment must be deemed as unwelcome. If the exchange of sexual material between employees is consensual, then while this may be inappropriate and deemed wrong by a supervisor, it cannot be construed as sexual harassment. This is because the behavior is not unwelcome.
However, if an employee received an email, text on a work phone, or a different image (poster, graffiti, print-out) that is sexually explicit, this could be grounds for a claim of sexual harassment. This would include an image containing nudity, sexual comments, or other sexualized material, and it could be related or unrelated to the workplace or people within the workplace. This sort of sexual harassment can still be documented if the sender never intended the recipient to open the email or letter or if the victim saw the image without meaning to. Whoever posted the image in the workplace or via work messages is responsible for the discomfort, embarrassment, psychological damage, or overall discomfort of the victim/recipient/viewer.
California’s Fair Employment and Housing Act sets many legal standards, and one of these is that all employers are tasked with a legal obligation to do everything reasonable in their power to prevent the employees from being harassed, discriminated against, or victimized by fellow or superior employees. The key here is that individuals who feel this behavior is being perpetuated should not only document these occurrences in the written form but report the unwelcome events to their bosses and supervisors immediately, so the appropriate actions can be taken.
Every work environment should be free of offensive conversations, vulgar jokes and gestures, and uncomfortable conversations about sexual actions. If a worker is repeatedly exposed to a co-worker who talks about sex in any form—even if they are not the person directly involved in the conversation, or they merely overhear these things being said—they should report that they have been a victim of sexual harassment in the workplace. The affected individual should also make it as clear as possible that this behavior is unwelcome and unwarranted, even though it is understood that making this claim can be difficult. Ideally, employees feel free to say that they are being targeted, that this is not alright, and that the behavior needs to stop immediately. They should also be certain to document everything, even if they are just taking notes on their phone.
Wherever people work, whether it is in a factory, an office, or a store—bullying should not be pervasive. Sexual harassment takes many forms, and it is often more about a power dynamic than it is about sexual acts of behavior. For example, when quid pro quo sexual harassment occurs, it usually involves a superior leveraging their power over someone below them, seeking out sexual favors, or behaving wrongly based on promises of advancement at the company. In other cases that focus less on attraction and more on power, bullying occurs when a worker is subject to a sexually charged slur or comment regarding their body or someone else’s. When degrading, lewd, or gross language is used to describe an employee’s body or any physical traits, this is sexual harassment. This holds true even if the witness was not meant to hear the derogatory comments, and it is harassment whether it was about the person who heard what was said, someone else at the company, or any individual. The point here is that this sort of language, and these types of comments, usually are used to bully other people and exercise the power dynamic that exists in most types of sexual harassment. Language like this has no place in the workplace, and it can prove damaging to employees’ emotional states as well as overall morale.
Within a hostile work environment and/or a workplace where bullying and sexual harassment occur, there are normally witnesses. One of the most common and offensive forms of indirect sexual harassment occurs when one employee witnesses sexual harassment but does not say or do anything to stop it. However, this often presents a difficult issue for the witness: what should they do, especially if they are worried about their job?
When individual witnesses a co-worker being belittled, bullied, commented about, demeaned, or sexually harassed in any form, it can make the witness feel that they are also subject to harassment. Witnesses often feel not only awkward and uncomfortable; they are placed in a no-win situation and completely distracted from the work they should be doing. Many times, when sexual harassment is witnessed, it can also divide the office among people who may think it is “just office culture” or who are not offended and those who are shocked and outraged. This can also create an “us vs. them” mentality, where superiors are seen as perpetuating dangerous behaviors, and their employees have to simply deal with it.
In some offices, sexual harassment becomes ingrained in the entire work experience. This can cause employees to feel uncomfortable and even scared of who will be next. If a worker is constantly in fear of being harassed, they will not only be able to focus on the job at hand but will begin to develop trauma. This is especially true if sexual harassment occurs but is not dealt with properly. At that point, the entire office thinks that sexual harassment is accepted, and the workplace can become a dangerous place to be. Some employees will begin to fear that the person or persons perpetuating the offensive behavior are being protected and that if they report these people, those who are being attacked will be retaliated against.
No one should ever be made to feel that they cannot report sexual harassment. This is an issue of fundamental human rights. If there is sexually offensive conduct at the workplace, it must be reported, taken seriously, and dealt with quickly and decisively, no matter who the perpetrator is.
In America, we have a tradition of office small talk, which is even captured by a popular expression: water cooler chat. Some offices and their employees, however, take that concept too far, and the casual conversations that are had around the office, in the hallways, and even while clustered around peoples’ desks feature explicit material that can make many people feel uncomfortable. Casual office chit-chat should never feature hostile or lewd comments or describe sexual acts that can and will make others feel harassed. In California, sexual harassment can involve casual “water cooler” talks and can take place between people of all genders. For example, a man can overhear a group of men or women talking and feel harassed enough to report it. This is also true for a female employee who is exposed to a group of women or men.
Sexual harassment is prohibited in California by state and federal law. Harassment that is sexual in nature is articulated by the EEOC as unwelcome verbal abuse based on genetics, age, sex, disability, race, color, origin, and/or religion. In California, sexual harassment is prohibited in the workplace by the state’s Labor Code, the California Constitution, and the FEHA. If you are a witness to or victim of sexual harassment in California, it is helpful to be familiar with these laws and acts, but it is also important to find representation. A skilled attorney will have adept knowledge of the legal issues contained in your particular case.
When sexual harassment occurs, self-doubt often becomes a part of the picture. Sometimes, employees downplay what has happened to them because they are embarrassed, or they try to forget the shame that they feel. Others convince themselves that the offensive comments or acts did not happen because they want to move on and they are in pain. Some workers will think that they do not have a strong claim, especially if they were not the original target of the abuse. Others will be exposed to indirect sexual harassment and feel that the treatment or the conversations that they overheard were not significant enough to begin the ordeal of reporting it and making sure that the harasser is penalized.
However, it is important to remember that employees in California are protected by the laws that govern the state and federal laws. Every person should have the right, in America, to work in a place that is free of sexual harassment of any kind. Even if an employee is only a witness or the harassment is not directed at them, they should still feel comfortable reporting the behavior to supervisors and, if that does not work, to the authorities. First, it is key to report all concerns to employers while taking careful notes regarding what happened. Put it in writing; this will come in handy later. Individuals should return to the employee handbook as well because usually, sexual harassment policies are spelled out there. Then, they should contact the human resources department, in writing or by email as well as by phone, so there is a record of it.
Although these matters can be emotional, it is essential for individuals to do their best to be polite, even-keeled, and professional when explaining what happened. Extreme actions can weaken the case and give more authority and power to the harasser. Of course, this is easier said than done in these types of personal matters. A skilled attorney can help with this.
Options will be presented to employees who report sexual harassment, from settlements to taking a leave from work. It is important that each individual do what is right for them and their mental and physical health.
Remember, employees should not feel threatened or uncomfortable at work. They should never feel violated or harassed at the office. If this is happening, it is integral to take immediate action to stop this behavior. In doing so, workers will not only be helping themselves, but helping everyone at that place of work, and others, who have been harassed.
It is everyone’s right to file a claim of sexual harassment. One way to begin the process is to file a complaint with the California Dept. of Fair Employment and Housing or the Commission of Federal Equal Employment Opportunity.
When sexual harassment occurs, workers’ lives are turned upside down. One of the first and most valuable steps an individual can make at this time is to contact a skilled, licensed attorney.
If harassment has occurred in a verbal or physical manner, if employees feel uncomfortable and violated at work, or if they have already reported the offensive behavior and nothing has been done about it, the best choice is to schedule a free consultation. At Nakase Law Firm, we have helped many victims of sexual harassment, and we will listen to your concerns and come up with the best plan of action in order to get your career and your life back on track.
