California and Federal Law Provide Protection Against Sexual Harassment at Work.
Fight Back with the Law on Your Side.
Sexual Harassment in the workplace is as intolerable as it is illegal. When someone has worked hard to prove their value to their employer by repeatedly demonstrating a strong work-ethic, intelligence and dedication to the job, it is demoralizing to be sexually objectified or discriminated against. Sometimes the best way to fight back is to obtain justice for yourself and at the same time ensure the employer does not continue to subject others to similar harassment or discrimination in the future.
Sexual Harassment and Discrimination Based on Sex is Prohibited by California Law and Federal Law.
The sexual harassment laws in California are some of the most aggressive in the country. There has been a lot of focus on the sexual harassment of women in the California workplace over the past couple of years. This recent focus began in 2006 when Tarana Burke, an activist from New York who was the victim of sexual assault both in her childhood and as adult, founded the Me Too movement to help other woman with similar experiences to stand up for themselves. In 2017, she was one of a group of women dubbed “the silence breakers” when the group was named as the Time Person of the Year. The same year, Alyssa Milano reinvigorated the Me Too movement by including #MeToo in a Tweet about sexual abuse allegations against Harvey Weinstein. Within a few weeks, millions of women across the world employed the phrase “Me Too” as a broader expansion of the movement attempting to ensure justice for all marginalized people.
Yet, even with this renewed awareness, women are sexually harassed in the workplace every day in California. In addition, members of the LGBTQ population and men also find themselves as the victims of sexual harassment in the workplace. According to the Washington Post, nearly one in five complaints of sexual harassment in the workplace filed with the EEOC are filed by men.
California Law has long recognized the need to protect both men and women from unwanted sexual advances, harassment and discrimination at work. When California’s Fair Employment and Housing Act (“FEHA”) was passed in 1959, it was adopted with the express purpose of eliminating all employment discrimination based on sex. But, over sixty years later, we still have a lot of fighting left to do.
California Law Also Prohibits Discrimination and Harassment Against Members of the LGBTQ Community.
As long ago as 2004, FEHA was amended to prohibit discrimination and harassment against homosexual and transgender employees – making it only the fourth state in the country to provide such protection.
Assembly Bill 196, (“AB 196”) which was intended to prohibit discrimination against transgender employees, became effective January 1, 2004. AB 196 also prohibits discrimination based on the person’s identity, appearance or behavior, as those characteristics relate to the individual’s gender. According to California law, “gender” means “the employee’s or applicant’s actual sex or the employer’s perception of the employee’s or applicant’s sex…identity, appearance, or behavior, whether or not that identity, appearance or behavior is different from that traditionally associated with the employee’s or applicant’s sex at birth.” By including this expanded definition of sex, the California Legislature intended to prohibit discrimination based on “sex stereotypes.”
Thus, in California, it is illegal for a person to be fired, demoted, discriminated against or harassed in the workplace based on their sex, sexual identity or sexual preference.
The Supreme Court of the United States Recently Held It is Illegal to Discriminate, Fail to Hire, or Fire an Individual Merely for Being Gay or Transgender.
On June 15, 2020, the Supreme Court of the United States extended the protections of Title VII of the Civil Rights Act of 1964 to include homosexuals and transgender individuals.
This means discrimination is now prohibited in the workplace by both Federal and California State Court law. Title VII of the Civil Rights Act of 1964 says it is:
Unlawful…for an employer to fail to or refuse to hire or to discharge any individual, or to otherwise discriminate against any individual…because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. §2000e-2(a)(1).
Because of this ruling, now – for the first time in the history of the United States – it is unlawful throughout the country to discriminate or to permit sexual advances or harassment based on an employee’s gender or gender identity by their employers, co-workers, customers or vendors of their employer.
Federally, the Equal Employment Opportunity Commission defines sexual harassment in the workplace as “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature…when this conduct affects an individual’s employment, unreasonably interferes with an individual’s work performance, or creates an intimidating, hostile, or offensive work environment.”
While most victims of sexual harassment are women (80%) harassed by men, discrimination against individuals due to gender identity, including transgender status, or due to sexual orientation are more and more prevalent, but equally illegal. This momentous decision in Bostock v. Clayton County, 590 U.S. ___ (2020) has forever changed workplace protection for members of the LGBTQ community.
The Bostock case, which combined the wrongful termination actions of three different members of the LGBTQ community, began with each of them having their employment terminated shortly after they revealed themselves to be gay or transgender. None of the employers denied this act alone was the reason for their employment being terminated. The Court held that “an employer who fires an individual merely for being gay or transgender defies the law.” Id.
What Qualifies as Sexual Harassment Under California Law?
The law in California is both clear and broad. It prohibits employers, employees, vendors and customers from sexually harassing any worker – female, male, or any member of the LGBTQ community.
FEHA defines sexual harassment as negative, inappropriate or unwanted conduct directed at a worker based on the worker’s:
- Gender Identity
- Gender Expression
- Marital Status
- Sexual Orientation
- Childbirth, or
- Pregnancy Related Medical Condition.
There are two different types of harassment specifically addressed by the law. These include quid pro quo harassment and hostile work environment harassment.
Quid Pro Quo Harassment
Quid Pro Quo is a Latin phrase that means “this for that.” Or, “you do something for me…then I will do something for you.” In this scenario, an employer, supervisor or person in a position of power either (1) offers an employee or worker some benefit that is conditioned upon the employee or worker performing a sexual act or submitting to some sexual favor or advance, or (2) threatens to fire or demote the employee or worker unless they submit to a sexual demand.
This type of harassment can be express or implied. In other words, even suggesting there potentially could be a benefit to performing a sexual act can be actionable under California law.
Hostile Work Environment Harassment
According to California case law, when a person is forced to work in an environment in which the conduct “sufficiently offends, humiliates, distresses or intrudes upon its victim, so as to disrupt her emotional tranquility in the workplace, affect her ability to perform her job as usual, or otherwise interfere with and undermine her personal sense of well-being’ the employer or supervisor engages in harassment based on sex.” Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 279 quoting Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 608.
FEHA has no requirement that the harasser realize the offensive nature of his conduct, that he intends to harass the victim or that the comments are directed toward the victim. In applying the protections of FEHA, courts have included verbal harassment, e.g. epithets, derogatory comments or slurs, as well as visual forms of harassment like derogatory cartoons, drawings and posters as factors in creating a hostile work environment.
Typically, to prevail on a hostile work environment claim, the victim must be able to demonstrate one of the following:
- The harassment was severe and/or
- The harassment was frequent.
If one of these factors are present, the court will consider the context and the circumstances of all the questionable behavior in making the determination of whether the workplace was a hostile environment.
Should I hire a Lawyer?
Please do not continue to tolerate this behavior or suffer in silence. The law is on your side.
However, there are strict deadlines in pursuing your case. In California, you must file a complaint with the Department of Fair Employment and Housing within one year from the date of the alleged violation in order to move forward. We can help navigate this process. If you are looking for a sexual harassment lawyer in Los Angeles, please consider Liakos Law.
It is against the law in California for an employer to retaliate against an employee who has filed a sexual harassment claim. If you have concerns about losing your job if you pursue a claim for sexual harassment – please call so we can discuss your options. All consultations are free and without obligation.
My role, as a sexual harassment lawyer, is to ensure your work environment is harassment-free. This is your right.