Question

How do I know if I have a sexual harassment case against my California employer?

Patricio T. D.

Answered by: Patricio T. D. "Pat" Barrera

Barrera & Associates
El Segundo, CA
Phone: 310-802-1500
Fax: 310-802-0500

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Answer

It can be difficult to determine if someone is legally sexually harassing you at work. Even if you are uncomfortable by someone else’s actions, you may not have a sexual harassment claim against your employer. 

In order to have a sexual harassment case, there has to be unwelcome and offensive behavior directed at you based on your sex or gender, and it must be pervasive or severe. There are also several forms of sexual harassment — whether it’s a quid pro quo offer, or a situation that causes a hostile work environment. Courts will look at all of these factors to determine whether or not you have a valid sexual harassment case. 

Elements Of A Sexual Harassment Claim 

There are several legal conditions you must meet in order to have a sexual harassment claim in California. 

  • Needs to cause harm: Whether physical, emotional, mental or psychological — the inappropriate behavior needs to have caused harm in some way.
  • Based on sex or gender: The behavior must have been targeted at you based on your sex. This includes sexual advances, as well as jokes or actions that target you based solely on your gender.
  • Has to be unwelcome: This is fairly easy to establish. You need to have indicated that you are uncomfortable or the behavior is unwelcome.
  • The action is objectively offensive: It is important for you to have found the behavior offensive. But more than that — the behavior needs to be considered offensive to any reasonable person of the same gender.
  • The behavior is severe or pervasive: While one overtly sexual advance from a superior is often enough to fulfill this condition, some behavior needs to occur more than one time to be considered “severe or pervasive.” If you have reported inappropriate jokes or sexual comments from co-workers to HR and this activity continues, it may then be considered severe or pervasive. 

Every situation is unique, and the role of your employment lawyer is to show the court that each of these conditions is fulfilled, so you can continue with your case and recover damages for the harm caused. 

Types Of Sexual Harassment In The Workplace 

There are two categories of sexual harassment that can occur in the workplace. Each is a serious issue that can cause you to feel uncomfortable or even unsafe at work. 

  • Quid pro quo: This generally occurs when a supervisor, manager or another superior offers a job benefit (such as a promotion or a raise) in return for a sexual favor.
  • Hostile work environment: This category includes any unwelcome actions or behavior that target you for your gender or sexuality — such as inappropriate jokes, sexual innuendos and sexual advances. 

Many quid pro quo interactions qualify as severe or pervasive, even if they happen just once. Actions that cause a hostile work environment need to be reported, and if the behavior continues, then it may be deemed severe or pervasive. Both of these, however, can cause serious harm to an employee. 

Was It A Co-worker Or A Supervisor/Manager? 

When identifying whether behavior is severe or pervasive, it matters who is engaging in the harassment. When a supervisor or another authority figure is engaging in the harassment, as often is the case with quid pro quo harassment, there is strict liability for the company. This means there is little need to establish that the behavior is “severe or pervasive” or “unwelcome,” as the individual is using existing power structures to engage in that harassment. 

When a co-worker, vendor, supplier or another third party harasses you in the workplace, you have to take appropriate steps to end that behavior before you can take legal action. This includes reporting the behavior to a superior. If nothing is done and this behavior continues, you are then able to hold your employer accountable for promoting a hostile work environment. 

Regardless of the details, if you feel wrongly targeted for your sex or gender in the workplace, you need to look into your rights and take the right steps — for your own safety. Together, we can hold harassers accountable and take the first steps toward putting a stop to this kind of behavior for good.

Disclaimer: The answer is intended to be for informational purposes only. It should not be relied on as legal advice, nor construed as a form of attorney-client relationship.

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