Under the Fair Employment and Housing Act (“FEHA”), sexual harassment is defined as verbal, physical or sexual behavior directed at an individual because of his or her gender. Cal. Gov’t Code §12900 et seq.; Peralta Community College Dist. v. Fair Employment & Housing Comm’n, 276 Cal. Rptr. 114 (1990). Sexual harassment consists of any unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature. Hostile work environment is the second category. Rieger v. Arnold, 104 Cal.App.4th 541 (2002). Sexual harassment is a form of sex discrimination under Article I, §8, of the California Constitution. Rojo v. Kliger, 276 Cal. Rptr. 130 (1990). An employment lawyer, sexual harassment lawyer, can help you file a lawsuit to recover money damages.
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In many respects, the FEHA parallels the federal statute, Title VII of the Civil Rights Act of 1964 (42 USC §2000e), and California courts often rely on federal case law to interpret FEHA provisions which are analogous to federal claims. See Fisher v. San Pedro Peninsula Hosp., 262 Cal. Rptr. 842 (1989); In certain areas, California state law under FEHA provides greater protection to employees than federal law. Please contact a sexual harassment lawyer to help understand the difference betweens California law and Federal law.
1:20 ELEMENTS OF SEXUAL HARASSMENT LAWS
1:21 Protected Employee
Both men and women are protected from sexual harassment. Matthews v. Superior Court, 40 Cal. Rptr. 2d 350 (1995); Mogilefsky v. Superior Court, 20 Cal. App. 4th 1409, 602. The FEHA does not cover the sexual harassment claims of an employee of a California-based company who is not herself a resident of California, whose employment duties are performed, for the most part, outside of California, and whose injuries are based on behavior that occurred outside of California. Campbell v. Arco Marine, Inc., 42 Cal. App. 4th 1850. You will need to contact a California sexual harassment lawyer to represent you in California.
1:22 Covered Employer
For harassment claims, an employer is “any person regularly employing one or more persons, or any person acting as an agent of an employer, directly or indirectly.” Cal. Gov’t Code §12940(h)(3)(A). A religious association or religious corporation not organized for private profit is not an employer under the FEHA. Cal. Gov’t Code §12940(h)(3)(B); see Robinson v. Fair Employment & Housing Comm’n, 2 Cal. 4th 226 (number of persons employed, whether full-time or part-time, determines status of employer). A sexual harassment lawyer do not find covered employer difficult to prove in court.
The Government Code distinguishes between harassment and discrimination in terms of who is a proper defendant. An “employer” is prohibited from engaging in discrimination under Government Code section 12940(a). An “employer or person” is prohibited from engaging in harassment under Government Code section 12940(h).
1:23 Harassment on the Basis of Sex
Sexual harassment includes, but is not limited to, verbal conduct (i.e., epithets, derogatory comments or slurs), as well as physical and visual insults. Sexual harassment also includes (but is not limited to) physical contact, e.g., assault, impeding or blocking movement, or any physical interference with normal work or movement, visual objects such as posters, cartoons, or drawings, sexual favors, and unwanted sexual advances. Cal. Code Regs. tit. 2, §§7287.6(b)(1), 7291.1(f). In court, sexual harassment lawyer will show harassment on the basis of conduct instead of intent to harass.
1:24 Exhaustion of Administrative Remedies
Before an employee may bring a civil action for sexual harassment, the employee must first file an administrative charge of discrimination with the Department of Fair Employment and Housing (“DFEH”) and obtain a “Right-to-Sue” letter from the DFEH. Cal. Gov’t Code §12960. A sexual harassment lawyer always must obtain a right to sue from the labor commissioner before filing a lawsuit in court.
The DFEH is required to issue a right-to-sue notice after one year, even absent a request. The failure by the DFEH to issue a right-to-sue notice after one year does not preclude a determination that an employee has exhausted her administrative remedies. Grant v. Comp USA, 2003 Cal. App. LEXIS 1099 (July 7, 2003). An employee should never wait to contact a sexual harassment lawyer to protect the right to sue.
1:30 SEXUAL HARASSMENT STATUTES AND CASE LAWS IN CALIFORNIA
1:31 Protected Employee
Current employees and job applicants are protected from sexual harassment. Cal. Gov’t Code §12940(h); Doe v. Capital Cities, 50 Cal. App. 4th 1038, 1045.
An employee who was not the intended object of the harassment may have a harassment claim if that employee can establish that she personally witnessed the harassing conduct and that it permeated her immediate work environment. Fisher v. San Pedro Peninsula Hosp., 214 Cal. App. 3d 590, 611. Indirect evidence is how sexual harassment lawyer prove that an employee is part of a protect class.
Same sex harassment is sexual harassment under the Fair Employment and Housing Act. Sheffield v. Dept. of Social Services, 2003 Cal. LEXIS 6174 (Aug. 21, 2003). Therefore, sexual harassment lawyers serving the LGBT community will often find harassment between same sex employees.
1:32 Covered Employer
FEHA prohibits an employer and its supervisors and agents from harassing an employee because of sex and holds an employer liable for harassment of an employee by a co-worker if the employer knew or should have known of the harassment and failed to take immediate and appropriate corrective action. Cal. Gov’t Code §12940(h)(1); see also Cal. Code Regs. tit 2, §7287.6(b)(3); but see Cal. Code Regs. tit. 2, §7287.6(b)(4) (employee’s failure to notify employer of harassment is not affirmative defense).
An employer may be strictly liable for the harassing actions of its supervisors and agents. Cal. Gov’t Code §12940(h)(1); Matthews v. Superior Court, 34 Cal. App. 4th 598, 606. An employer is not liable for harassment of an employee committed by a customer or a client. Carter v. Dept. of Veterans Affairs, 109 Cal. App. 4th 469. A sexual harassment lawyer will never take on a case where a customer harasses the employee.
Supervisors are personally liable for their sexual harassment of employees. Matthews v. Superior Court, 34 Cal. App. 4th 598, 606.
A non-harassing supervisor, who fails to take action to prevent sexual harassment, is not personally liable for sexual harassment as either an aider or abettor of the harasser or the employer, or as the employer’s agent. Fiol v. Doellstedt, 50 Cal. App. 4th 1318.
An employer is required to take all reasonable steps to prevent harassment from occurring and to prohibit retaliation for opposing harassment. Cal. Gov’t Code §12940(f), (h), (i) and (j). An employer’s duty to prevent harassment and discrimination is affirmative and mandatory. Prompt investigation of a discrimination or harassment claim is a necessary step by which an employer meets its obligation to ensure a discrimination-free work environment. Northrop Grumman v. W.C.A.B., 103 Cal.App.4th 1021 (2002).
An employer is automatically liable for sexual harassment under a hostile work environment theory when the claim is against a supervisor, subject to certain affirmative defenses regarding the reasonableness of conduct by the employer and the victim. Faragher v. City of Boca Raton, 524 U.S. 775, 118 S. Ct. 2275 (1998).
An employer may be liable for a sexual harassment claim when the claim is against a supervisor, even when the victim suffered no tangible job detriment. Burlington Indus., v. Ellerth, 524 U.S. 742, 118 S. Ct. 2257 (1998) (Title VII).
An employer is vicariously liable for actionable sexual harassment caused by a supervisor with immediate or higher authority over the victim, subject to an affirmative defense regarding the reasonableness of an employer’s conduct and the reasonableness of the victim’s conduct. Faragher v. City of Boca Raton, 524 U.S. 775, 118 S. Ct. 2275, 2279 (1998) (Title VII). When no “tangible employment action” is taken, an employer may raise the affirmative defense to liability or damages. No affirmative defense will be available when a supervisor’s harassment culminates in a tangible employment action, such as discharge, demotion or undesirable reassignment. Burlington Indus., v. Ellerth, 524 U.S. 742, 118 S. Ct. 2257 (1998) (Title VII). A creative sexual harassment lawyer will find vicaious liablity to the employer.
A tangible employment action “constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Tangible employment actions “fall within the special province of the supervisor,” and is for Title VII purposes “the act of the employer.” Burlington Indus., v. Ellerth, 524 U.S. 742, 118 S. Ct. 2257, 2268-2269 (1998) (Title VII).
An employer may show, as an affirmative defense, that it exercised reasonable care to avoid sexual harassment and eliminate it when it might occur, and that the employee failed to show reasonable care by taking advantage of the employer’s safeguards and otherwise preventing harm that could have been avoided. Faragher v. City of Boca Raton, 524 U.S. 775, 118 S. Ct. 2275, 2279 (1998) (Title VII).
Proof of an anti-harassment policy is not necessary, but will satisfy the first element of the affirmative defense. Proof that an employee did not exercise reasonable care is not limited to failure to use the employee complaint process, but such a failure will satisfy the employer’s burden under the second element. Faragher v. City of Boca Raton, 524 U.S. 775, 118 S. Ct. 2275, 2292-2293 (1998) (Title VII). In discovery, a sexual harassment lawyer will look to written policy of anti-harassment as a foundation.
No such distinctions regarding “tangible employment actions” suffered by plaintiffs are found in the Fair Employment and Housing Act or its regulations, and no affirmative defenses of the kind identified in Faragher, supra and Ellerth, supra, are available to employers under FEHA. In fact, the regulations state that in the case of co-workers, failure to notify is not an affirmative defense. An employee’s failure to notify the employer of harassment by a co-worker is not an affirmative defense. 2 Cal. Code §7287.6(b)(4).
1:33 Harassment on the Basis of Sex (Sexual Advance or Exchange Promotion for Sex)
1:331 Quid Pro Quo – Sex
Under a “quid pro quo” theory, an employee must plead that either the employment itself, a term of the employment, or avoidance of negative consequences in the employment is conditioned upon submission to unwelcome sexual advances. Quid pro quo harassment involves sexual propositions, unwarranted graphic discussion of sexual acts, and commentary on the employee’s body and the sexual uses to which it could be put. See, e.g., Bihun v. AT&T Information Systems, Inc., 13 Cal. App. 4th 976, 988. When an employee believe that sexual advances from a supervisor, the employee should contact a sexual harassment lawyer.
If a term of employment is expressly or impliedly conditioned on acceptance of a supervisor’s unwelcome sexual advances, a cause of action lies for sexual harassment under the quid pro quo theory. Mogilefsky v. Superior Court, 20 Cal. App. 4th 1409, 1414 (implied promise of higher pay to come to supervisor’s hotel constituted sexual harassment).
1:332 Hostile Work Environment
A claim for sexual harassment on a “hostile work environment” theory need not allege any sexual advances whatsoever; the key is that an employer created a hostile environment for an employee because of that employee’s sex. See Accardi v. Superior Court, 17 Cal. App. 4th 341, 348 (claim for hostile work environment does not require explicit sexual harassment, nor must it have explicit sexual overtones).
An employee may claim a hostile work environment where the harassment is sufficiently pervasive so as to alter the conditions of employment and create an abusive work environment. Sufficiently pervasive harassment requires a pattern of harassment of a routine or generalized nature. Fisher v. San Pedro Peninsula Hosp., 214 Cal. App. 3d 590, 608-10. In looking for patterns, sexual harassment lawyers look to anomly in a sueprvisors conduct.
The alleged misconduct need not seriously affect the employee’s psychological well-being. Kelly-Zurian v. Wohl Shoe Co., 22 Cal. App. 4th 397, 412 (“[s]o long as the environment reasonably would be perceived, and is perceived, as hostile or abusive, there is no need for it also to be psychologically injurious”); see also Harris v. Forklift Systems, 510 U.S. 17, 21 (1993) (no evidence of psychological harm required to establish a hostile work environment).
Wherever the harassing conduct occurs, it must occur in a work-related context and have a sufficient nexus to the employment relationship. Doe v. Capital Cities, 50 Cal. App. 4th 1038, 1048. In Capitol City Foods, Inc. v. Superior Court, 5 Cal. App. 4th 1042, 1049, supervisor who raped employee during off-duty date did not act in the course of his employment. A sexual harassment lawyer will argue that the off work conduct continue at work because of certain conducts.
The plaintiff need not need allege the actual loss of a tangible job benefit to establish harassment. Cal. Gov’t Code §12940(h); Bihun v. AT&T Information Systems, Inc., 13 Cal. App. 4th 976, 1003.
A employee must show that the conduct was unwelcome. Weeks v. Baker & McKenzie, 63 Cal. App. 4th 1128, 1146.
The victim’s prior consent to sexual relations with the harasser does not waive her right to decline later. Donald Schriver, Inc. v. Fair Employment & Housing Comm’n, 220 Cal. App. 3d 396.
1:334 On the Basis of Sex
Under FEHA, sexual harassment includes gender harassment and harassment based on pregnancy, childbirth, or related medical conditions. Cal. Gov’t Code §12940(h)(3)[c].
The employee must show that gender is a substantial factor in the harassing conduct. Accardi v. Superior Court, 17 Cal. App. 4th 341, 348.
1:335 Examples of Sexual Harassment
Placing a lewd question on an employee’s computer screen constituted sexual harassment. Monge v. Superior Court, 176 Cal. App. 3d 503.
A senior official of the employer sexually harassed an employee when he exposed himself to her, repeatedly touched her and asked her to touch him, asked her out socially, insisted she attend a “business” dinner with him, discussed his unsatisfactory sex life and his need for extramarital affairs, told her if she “played her cards right” she could have any job she wanted, and asked her to have an affair with him. Bihun v. AT&T Information Systems, Inc., 13 Cal. App. 4th 976, 979-87. If you face such conduct from a supervisor, please contact our sexual harassment lawyer for a free consultation: 619-550-1321.
The employee’s complaint adequately alleged sexual harassment against a male supervisor who sexually harassed the male employee by making sexual comments and implying that the employee would receive increased pay for going to the supervisor’s hotel, and because there was evidence of a hostile environment toward males. Mogilefsky v. Superior Court, 20 Cal. App. 4th 1409.
An employee adequately plead a claim for sexual harassment by alleging that the employee was the object of threats, rejection, mockery, the application of double standards, sexual advances, and intimidation for nine years. Accardi v. Superior Court, 17 Cal. App. 4th 341, 349.
It was sexual harassment to verbally abuse the employee, make suggestive remarks, touch the employee’s breasts and crotch, and regularly pinch her buttocks, all persisting for over three years. Kelly-Zurian v. Wohl Shoe Co., 22 Cal. App. 4th 397, 409.
A supervisor sexually harassed an employee by repeatedly touching her, putting his hand in the breast pocket of her blouse saying “Let’s see which breast is bigger” and putting his knee in her lower back, grabbing her buttocks, and staring at her. Weeks v. Baker & McKenzie, 63 Cal. App. 4th 1128, 1143. A supervisor touch an employee is egregious and therefore the employee should consult with a sexual harassment lawyer. Call Now: 619-550-1321.
A supervisor sexually harassed an employee by telling her she could wear shorts, grabbing and holding her hand and pulling her toward him, frequently mentioning penile implants, asking her to tape X-rated movies for him, and asking her if she got aroused watching X-rated movies. Casenas v. Fujisawa USA, Inc., 58 Cal. App. 4th 101, 106-07.
A romantic relationship between a supervisor and an employee, other than the plaintiff, does not alone create a sexual harassment claim. Proksel v. Gattis, 41 Cal. App. 4th 1626.
To bring a claim under the FEHA an employee must first file a claim with the California Department of Fair Employment & Housing (“DFEH”) within one year from the date of the adverse action. The one-year period may be extended for a maximum of 90 days if the employee “first obtained knowledge of the facts of the alleged unlawful employment practice after the expiration of one year from the date of their occurrence.” Cal. Gov’t Code §12960. To protect your right, please contact a sexual harassment lawyer without delay. Free consutlation. 619-550-1321.
The one-year limitations period for filing an administrative charge of discrimination with the DFEH begins to run from the time the adverse action actually takes place, not at an earlier date when the employee may have been notified of the adverse action. Romano v. Rockwell Int’l, 14 Cal. 4th 479, 493.
Employees may assert harassment claims based upon adverse actions prior to the one-year limitations period under the “continuing violation” doctrine. To invoke the doctrine, the employee must show that the adverse action was part of a long-standing practice of harassment which continued into the limitations period. Accardi v. Superior Court, 17 Cal. App. 4th 341, 349-51.
While a plaintiff must exhaust administrative remedies prior to bringing a civil suit under FEHA, a plaintiff may also bring a constitutional claim for sexual harassment. Cal. Const. art. I, §8; Rojo v. Kliger, 52 Cal. 3d 65, 99.
If the employee alleges claims against individual defendants, the employee must specify their names in the caption or body of the administrative complaint. Martin v. Fisher, 11 Cal. App. 4th 118.
A “Right-to-Sue” notice issued by the Equal Employment Opportunity Commission does not satisfy the requirement that the plaintiff exhaust administrative remedies under FEHA. Martin v. Lockheed Missiles & Space Co., 29 Cal. App. 4th 1718, 1724-30.
1:40 REMEDIES FOR SEXUAL HARASSMENT LAWSUIT
- Injunctive Relief (Cal. Gov’t Code §12970(a); see, e.g., Wilson v. Safeway Stores, 52 Cal. App. 4th 267, 270.
- Back Pay (Cal. Gov’t Code §12970(a); Kelly-Zurian v. Wohl Shoe Co., 22 Cal. App. 4th 397.
- Emotional Distress Damages (Kelly-Zurian v. Wohl Shoe Co., 22 Cal. App. 4th 397, 410. In Doyle v. Superior Court, 50 Cal. App. 4th 1878, 1887, the court held that sexual harassment claim based on past emotional distress does not compel plaintiff to undergo Code of Civil Procedure §2032 mental exam)).
- Attorneys’ Fees (Cal. Gov’t Code §12965(b).
- Punitive Damages (see Cal. Gov’t Code §12970; Commodore Home Systems, Inc. v. Superior Court, 32 Cal. 3d 211, 214-15. In Kelly-Zurian v. Wohl Shoe Co., 22 Cal. App. 4th 397, the court held that the act of oppression, fraud or malice, by an officer, director or managing agent sufficient to impose liability on a corporate employer for punitive damages without additional showing of employer ratification). In Monge v. Superior Court, 176 Cal. App. 3d 503, the court held that oppression or malice established by allegations that defendants had refused to investigate employee’s complaint about lewd question that had appeared on her computer terminal, refused to address the complaint, and had engaged upon a systematic course of retaliation against the employee and reporting supervisor). In Weeks v. Baker & McKenzie, 63 Cal. App. 4th 1128, 1148-60, the holding was that the employee not required to show that employer itself was guilty of oppression, fraud, or malice when evidence showed employer knew that the individual defendant “was likely to sexually harass employees such as the employee” and employer exhibited conscious disregard for the rights and safety of others by failing to take reasonable steps to prevent the individual’s misconduct)).
1:50 STATUTE OF LIMITATIONS
Before filing a civil action for sexual harassment under the FEHA, the employee must first file an administrative charge of discrimination with the DFEH and obtain a “Right-to-Sue” letter. The employee must ordinarily file the claim with the DFEH within one year of the harassment. Cal. Gov’t Code §12960; see also §XIV.1:34. A employee then has one year from the date that the “Right-to-Sue” letter is issued to file a civil complaint under the FEHA. Cal. Gov’t Code §12965(b).
1:60 AFFIRMATIVE DEFENSES
- Statute of Limitations (see above).
- Mandatory Arbitration Requirement (see Prudential Ins. Co. of America v. Lai, 42 F.3d 1299 (9th Cir. 1994) (in agreeing to arbitrate Title VII claims, employee must knowingly waive Title VII rights and remedies); see also Davis v. Continental Airlines, Inc., 59 Cal. App. 4th 205 (defendants’ right to arbitrate waived for failure to demand arbitration while pursuing discovery in civil action)).
- Failure to Exhaust Administrative Remedies (see, e.g., Martin v. Lockheed Missiles & Space Co., 29 Cal. App. 4th 1718.
- Failure to Mitigate (see generally Stanchfield v. Hamer Toyota, Inc., 37 Cal. App. 4th 1495 (explaining measure of mitigation); Parker v. Twentieth Century-Fox Film Corp., 3 Cal. 3d 176 (although not exactly an affirmative defense, this doctrine can be used to reduce damages)).
- Avoidable Consequences (State Department of Health Services v. Superior Court (McGinnis) (2003) 31 Cal.4th 1026, 1044 (in FEHA action against employer for hostile environment sexual harassment by a supervisor, employer may rely on avoidable consequences defense to limit damages if employer can plead and prove: (1) employer took reasonable steps to prevent and correct workplace sexual harassment, (2) employee unreasonably failed to use preventive and corrective measures that employer provided, and (3) reasonable use of employer’s procedures would have prevented at least some of the harm that employee suffered).