California Sexual Harassment Law Guide

To anyone who has experienced sexual harassment in the workplace, you are not alone. Employees across Los Angeles, San Francisco, and California face these challenges daily. Your experience is valid, and it’s important to know that there are legal protections in place to support you. This guide is designed to help you understand your rights and the steps you can take to seek justice.

Statistics on Sexual Harassment

• According to a recent EEOC study, one out of four women and one out of five men have experienced sexual harassment.
• The #MeToo movement has amplified countless stories, shedding light on appalling conduct that amounts to sexual harassment in the workplace.

Legal Protection

Sexual harassment in the workplace is against the law. Understanding your rights is the first step to seeking justice.

Our Commitment

This article from the California employment attorneys at Ottinger Employment Lawyers will help you understand California’s sexual harassment laws and guide you through your options. If you have any questions, please contact us online today or call (866) 575-1820. We have offices in Los Angeles and San Francisco.

The Complete Guide to California Sexual Harassment Law

What is California Sexual Harassment?

California sexual harassment laws define sexual harassment as any behavior or action of a sexual nature that creates a hostile, intimidating, or offensive work environment based on an employee’s sex. Even a single severe incident can qualify as sexual harassment under this legal definition.

Examples of Sexual Harassment

• An offer of employment or other benefits in exchange for sexual favors
• Derogatory comments, slurs, epithets, or jokes
• Unwanted touching, such as back rubs, pats on the butt, pinching, or “accidental” brushes against your chest or other parts of your body
• Unwanted sexual propositions
• Discussion of sexual acts
• A threat to reduce your hours, benefits, the rate of pay, or otherwise hurt your conditions of employment if you don’t comply with a sexual request
• Loss of employment, benefits, or other adverse impacts after complaining about harassment
• Leering or rude gestures
• Someone displaying or “giving” you sexually suggestive objects, pictures, cartoons, or posters
• Graphic comments, sexually degrading words, sexually suggestive or obscene messages or invitations
• Someone impeding or blocking your movements

What To Do if You are a Victim of California Sexual Harassment

Understand Your Rights

Your employer must ensure a workplace free of sexual harassment and respond promptly and appropriately to any incidents.

Read Your Employer’s California Sexual Harassment Policy

The California Code of Regulations (2 CCR § 11023) mandates that employers have a sexual harassment policy and ensure that employees are informed about it. This policy must outline the procedure for employees to report harassment.

Report the Incident(s)

Follow your employer’s policy when reporting an incident of sexual harassment. Report the incident in writing or follow up with a written document. Request a “delivery” and “read” receipt if sending by email. Keep copies of your initial complaint and all subsequent communications. Include detailed descriptions of the incident, names of witnesses, and any corroboration.

If Reporting the Complaint to Your Employer Fails to Resolve the Problem

Filing a Complaint with the California Department of Fair Employment and Housing or the Equal Employment Opportunity Commission

If your employer fails to respond adequately to your complaint or you face retaliation, consider filing a complaint with DFEH or the EEOC. You do not have to file a complaint with both agencies.

Seek Legal Advice

Our employment attorneys in Los Angeles and San Francisco can help you understand how federal and state laws apply to your case. They can explain your options, assist with filing a California sexual harassment complaint, and evaluate the relevance of details. An attorney can also advise on whether filing a lawsuit makes sense and how different actions might impact your case.

Think Very Carefully Before Sharing Anything on Social Media

Remember that employers or defendants can use your social media posts against you. Private discussions with attorneys and health professionals are confidential, but conversations with friends, family, co-workers, and on social media are not. Sharing what you discussed with your lawyer can also risk losing the confidentiality protections of those communications.

Remedies Available to Victims of California Sexual Harassment

Victims of sexual harassment in California have a right to recover monetary damages to compensate them for their losses. If you prevail in your claims, you may be entitled to the following remedies:

• Damages for emotional distress
• Hiring or reinstatement
• Back pay or promotion
• Changes in employer policies or practices

Additional Remedies

If you file and win a civil lawsuit, the court may award you reasonable attorney’s fees and costs, including expert witness fees. In rare cases, you might also receive punitive damages if your employer acted with extreme malice, recklessness, oppression, or fraud.

California Civil Code Section 3294

This code governs awards of punitive damages under FEHA and defines “malice,” “oppression,” and “fraud” as follows:

• Malice: Conduct intended to cause injury and conscious disregard of the rights or safety of others.
• Oppression: Despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.
• Fraud: Intentional misrepresentation, deceit, or concealment of a material fact to deprive someone of property or legal rights or cause injury.

Federal Law – Title VII

Title VII limits the amount of punitive damages available based on the employer’s size. For example:

• Employers with fifteen to a hundred employees are not liable for more than $50,000 in damages.
• Employers with 500 or more employees may face punitive damages up to $300,000.

Types of Sexual Harassment

Quid Pro Quo Sexual Harassment

Quid pro quo, a Latin phrase meaning “this for that,” occurs when someone conditions your hiring, continued employment, promotion, or benefits on your submission to sexual advances or other sexual conduct. A single incident of quid pro quo harassment is serious enough to create liability.

Hostile Work Environment Sexual Harassment

Hostile work environment sexual harassment occurs when pervasive or severe behaviors alter your employment conditions, interfere with your work, or create an intimidating, hostile, or offensive environment. Even if the behavior is not aimed directly at you, it can still create a hostile environment.

California Fair Employment and Housing Act

In California, the Fair Employment and Housing Act (FEHA) is the law that protects workers from sexual harassment in the workplace. This state law outlines clear guidelines and mechanisms to address and prevent such misconduct. Under both Title VII and FEHA, sexual harassment is a form of employment discrimination.

Liability for California Sexual Harassment Claims

Employee Liability

An employee who harasses someone is personally liable for damages, regardless of whether the employer knew or should have known about the harassment.

Employer Liability

Employers are held “strictly liable” if a supervisor commits harassment or if the perpetrator is the employer. The employer is also responsible if it knew or should have known about the harassment and failed to take immediate and appropriate corrective action.

Filing a Complaint

Under California law, there is no private, “stand-alone” cause of action under FEHA. You must first file an administrative complaint with the California Department of Fair Employment and Housing (DFEH) and obtain a right-to-sue notice before filing a lawsuit in court.

Evolving Sexual Harassment Laws

In March 2022, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFASASHA) was passed by Congress. This law stops employers from forcing employees to settle sexual assault or harassment cases through private arbitration instead of going to court.

Key Changes in Arbitration

• Workers were previously required to use arbitration, a private way to resolve disputes, rather than going to court.
• The new law allows victims to take their cases to court even if they had previously agreed to arbitration.
• The law applies to both individual and group claims and affects other claims related to sexual harassment or assault.

State Laws

Some states have stricter laws that protect workers, covering smaller employers and allowing more types of workers, like interns, to file claims.

Practical Steps

Employers need to update their policies to comply with this new law. Victims now have the option to take their cases to court, giving them more control over how their cases are handled. EFASASHA provides stronger protections for employees by allowing them to avoid private arbitration and seek justice in court for sexual harassment and assault claims.

What NOT To Do If You’re a Victim of California Sexual Harassment

Do Not Destroy or Get Rid of Evidence

Resist the urge to delete any offensive message, note, text, or email. These are crucial pieces of evidence for any investigation or lawsuit. Preserve this evidence and take detailed notes about what happened, when, where, and any witnesses. Save evidence by taking time and date-stamped photos with your phone.

Do Not Record Audio Conversations Without Consent

California is a “two-party consent” state, making it a crime to record private conversations or calls without everyone’s consent. This also applies to video recordings with audio. Exceptions include recording police officers during their official duties without their consent. Generally, avoid recording without obtaining consent.

Do Not Wait Too Long Before You Act

Under California law, you must file a complaint with DFEH within one year of the last act of harassment or retaliation. There are also limitations on how long you can wait to file a complaint with the EEOC. In most cases, the EEOC time limit for filing a complaint is 180 days (six months), but it is extended to 300 days in California.

Do Not Think Retaliation is Allowed

If you complain about California sexual harassment and your employer retaliates, the employer’s behavior becomes more egregious under the law.

Do Not Accept Excuses for Inaction

• Excuse: “He/she told me he is not even attracted to you so that behavior can’t be sexual harassment.”
  • Fact: Harassment because of sex includes harassment motivated by sexual desire, gender-based harassment, and harassment based on pregnancy, childbirth, or related medical conditions.
  • Fact: Employers have a duty to provide a working environment free from sexual harassment, regardless of the perpetrator’s employment status.
  • Fact: All workers, including unpaid interns, volunteers, and contractors, are protected under California sexual harassment laws.
  • Fact: A hostile work environment impacts everyone present, not just the direct target.

  Do Not Assume You are the Only Victim

  The behavior you perceive as mildly rude could be highly offensive to someone else. Harassment must be both objectively and subjectively offensive. Even if the behavior seems mild to you, it could be impacting others more negatively.

  Do Not Spend Too Much Time Worrying About Being “Too Sensitive”

  Sexual harassment is a serious matter and can cause significant trauma. Perpetrators may claim their behavior was “just a joke.” The perpetrator’s intent is not the only factor that matters. The impact on the victim and how a reasonable person would react are also important.

  Do Not Confuse Sexual Assault and Sexual Harassment

  If someone forces you to engage in involuntary sexual contact through violence, coercion, or incapacitation, it is more than sexual harassment; it is sexual assault, a crime under California Penal Code Section 243.3.

  If You Have Experienced Sexual Assault

  • Call 911 if you are being assaulted or if you witness someone else being sexually assaulted.
  • Report incidents of sexual assault to local police.
  • See a healthcare provider to receive appropriate care.
  • Consider contacting a crisis hotline.
  • Seek support from friends, family, and community agencies.
  Contact Us Schedule your consultation today. Schedule your consultation today.

  Contact a California Employment Attorney Today

  If you have questions about your situation, schedule a case review with one of the top law employment firms in California. You can contact us online or call us at (800) 668-7984.

  Ottinger Employment Lawyers have offices in Los Angeles and San Francisco.