How Is Sexual Harassment In The Workplace Defined In California?
“Sexual Harassment” is a general concept that by now, in the era of “Me Too,” most everyone understands means bad behavior in the workplace of a sexual nature, involving unwanted sexual advances or harassing conduct, that is not supposed to happen. If it does, there may be a right to file a lawsuit and recover compensation for being subjected to it. “Sexual harassment” includes two different concepts: “quid pro quo” and “hostile work environment.” Both types of cases involve illegal workplace conduct that gives rise to a claim for sexual harassment, for which one may reach out to a lawyer to pursue a claim. No one should have to endure sexual harassment to earn a living. We have handled these cases successfully for years. We welcome the opportunity to help you.
When clients call us seeking help, they often describe what happened to them at work, believing what they describe is “sexual harassment.” Many times, it is not. We can quickly sift through the details and determine whether there is a case or not.
It is because of our expertise and experience at doing “sexual harassment” cases for decades, as well as gender discrimination cases, that we can explore these concepts in this article, and help the reader understand what “sexual harassment” is, and how it is defined in the workplace in California, and how we can help clients who may have claims they want to hire us to pursue.
It is often helpful to understand that “Sexual Harassment” is not a general civility code designed to allow someone to sue because he or she might be feeling picked on from an overbearing boss, or he or she had to endure some language of a sexual nature that was not severe or pervasive enough to make out a claim for sexual harassment.
All the time, it comes up that someone tells us that their boss is yelling at them, or the workplace is a pressure cooker and an overbearing boss is making someone’s life miserable on account of a perceived distinction in the way a boss treats someone based one’s sex, or gender. Here, such a claim of being harassed is not really “sexual harassment” as it is defined in California law. It may be discrimination based on gender, for which there may be a case, but as described, it is not “sexual harassment.”
With the advent of technology, we have seen an increasing number of cases involving improper sexual text messages, emails, and social media communications (Instagram, SnapChat, What’s App, Kik, Facebook, Twitter, etc.). The value of these cases depends upon skillfully navigating the technical and evidentiary challenges that technology presents.
It is important to understand that “sexual harassment” is separate and distinct from the concept of discrimination based on sex or gender, which itself is an illegal workplace practice specifically prohibited by the California Constitution, article 1, section 8, and see the case of Rojo v. Kliger (1990) 52 Cal.3d 65, 90. In the context of discrimination based on sex, “sex” is defined under California law, Government Code section 12926(q) to include “a person’s gender. “Gender” means sex and includes a person’s gender identity and gender expression. “Gender expression” means a person’s gender-related appearance and behavior whether or not stereotypically associated with the person’s assigned sex at birth.” Gender discrimination is itself an illegal workplace practice, and it is important to understand that there may be claims for gender discrimination as well as claims for sexual harassment.
Under California law, “sex” is defined broadly. It does not mean a sexual motive. Rather, the definition of sex is as used in the context of hostile work environment sexual harassment litigation includes harassment on the basis of a person’s gender, pregnancy, childbirth, or pregnancy-related medical condition. California Government Code section 12940(j)(4)C). “A recent legislative amendment modiﬁes section 12940, subdivision (j)(4)(C)(a provision of FEHA specifying types of conduct that constitute harassment because of sex) to read: ‘For purposes of this subdivision, “harassment” because of sex includes sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions. Sexually harassing conduct need not be motivated by sexual desire.’ ” Lewis v. City of Benicia (2014) 224 Cal.App.4th 1519, 1527 fn. 8.
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“Hostile work environment” sexual harassment then is best understood as illegal conduct based on gender, and not involving sexual motivation. “Quid pro quo” type sexual harassment is based on sexual motivation.
Hostile work environment sexual harassment does not need to have anything to do with lewd acts, double entendres, sexual desires, or a sexually-charged atmosphere. Miller v. Department of Corrections (2005) 36 Cal.4th 446, 469. Under a hostile work environment sexual harassment theory, it can be negative conduct directed at a person due to a characteristic that meets the broad definition of “sex.” Accardi v. Superior Court (1993) 17 Cal.App.4th 341, 345. Under . . . FEHA, sexual harassment can occur between members of the same gender as long as the plaintiff can establish the harassment amounted to discrimination because of sex.” Lewis v. City of Benicia (2014) 224 Cal.App.4th 1519, 1525. “[T]here is no requirement that the motive behind the sexual harassment must be sexual in nature. ‘[H]arassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex.’ Sexual harassment occurs when . . . sex is used as a weapon to create a hostile work environment.” Singleton v. United States Gypsum Co. (2006) 140 Cal.App.4th 1547. Plaintiff must show a discriminatory intent or motivation based on gender.” Pantoja v. Anton (2011) 198 Cal.App.4th 87, 114. “[A] heterosexual male is subjected to harassment because of sex under the FEHA when attacks on his heterosexual identity are used as a tool of harassment in the workplace, irrespective of whether the attacks are motivated by sexual desire or interest.” Taylor v. Nabors Drilling USA, LP (2014) 222 Cal.App.4th 1228, 1239–1240. “[A] cause of action for sexual harassment in violation of Government Code section 12940, subdivision (h) may be stated by a member of the same sex as the harasser . . . .” Mogilefsky v. Superior Court (1993) 20 Cal.App.4th 1409, 1418.
Unlike a “hostile work environment” sexual harassment theory case, a “quid pro quo” type case is where the victim is claiming that the harasser demanded sexual favors as a condition of work benefits. This type of case requires a sexual motive. This is self-evident because the very nature of a sexually-driven job offer or job threat involves a sexual motive.
So, separate and apart from illegal workplace discrimination based on sex or gender, which may be the case if a male boss, for example, is singling out a female subordinate for mistreatment based on sex or gender, understanding the circumstances of what constitutes “sexual harassment” whether of the “hostile work environment” type or “quid pro quo” type (or even a hybrid combination of the two) brings us to the starting point where the definitions originate.
Our starting point for defining what is “sexual harassment” in California is first understanding that there are two systems of laws that overlap. Under federal law and California law, the concept of “sexual harassment” is outlined, see Title VII of the Federal Civil Rights Act (42 U.S.C. § 2000 (1964), as well as under California law as set forth in the California Fair Employment and Housing Act (FEHA) (Government Code section 12940 and following sections). Through the years, court cases arose in which the contours from the federal and California laws were refined.
As the cases historically arose, two types of case distinctions for “sexual harassment” emerged: (1) quid pro quo sexual harassment, (which means “this for that,”) and (2) hostile work environment sexual harassment. Over the years, the categories became blurred, although the concepts still apply. Old law and cases that are outdated, overruled or discredited, that do not apply any longer, often make it confusing when someone reads an outdated website picking up old cases and old definitions. Burlington Industries, Inc. v. Ellerth (1998) 524 U.S. 742, 765 [“the labels quid pro quo and hostile work environment are not controlling for purposes of establishing employer liability”]; and see the California case of Hughes v. Pair (2009) 46 Cal.4th 1035, 1042.
The concepts are important to understand, though, because every single case is different and it is critical to understand the distinctions so one can determine if they have a case or not. Said differently, not every case is quid pro quo, and not every case is hostile work environment. Some cases may be combination of the two, and it takes a savvy, experienced lawyer to be able to navigate these distinctions and win a case for a client.
So, what is “quid pro quo” and what is “hostile work environment,” and why does it matter for purposes of defining what is “sexual harassment?”
“Quid Pro Quo” Sexual Harassment
Lawyers and judges for some reason are fixated on Latin. Maybe one day that will change. In the meantime, just know that “Quid Pro Quo” translates to “this for that.”
“Quid pro quo” sexual harassment situations require that a supervisor make an employment decision for a subordinate conditioned on the subordinate’s submission to unwelcome sexual advances. The seminal case in California is Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590.
A sexual advance by a boss to a subordinate contains two intermingled concepts: a power differential between the supervisor and the subordinate, and exercise of that power in a controlling, possibly demeaning way using a sexual advance. In this context, when the sexual advance is made, it may feel mandatory to the subordinate who very easily and reasonably could believe that their continued employment depends on whether they agree to the sexual advance. No one should have to work under circumstances where they must engage in sexual activity or endure unwanted sexual advances as a condition of employment. In every circumstance involving this power dynamic between the boss and the subordinate, there arises the potential problem that the sexual exchanges between the two parties are not consensual, and are therefore coercive, and potentially amount to sexual harassment. It is therefore, well-established California that employers and supervisors are prohibited from requiring employees to submit to or tolerate unwelcome sexual advances as a condition of their employment. Hughes v. Pair (2009) 46 Cal.4th 1035, 1042–43.
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“Quid pro quo” situations we have handled successfully include (1) an offer of something beneficial, like a promotion if the client agreed to engage in sexual activity, (2) a threat of something bad, like getting fired unless the client keeps engaging in sexual activity that started out being consensual, or (3) a combination, such as engaging in sexual texting with the supervisor hoping to get promoted, getting promoted, then deciding to stop the sexual texting and getting threatened with termination, demotion or being reported to HR for sending sexually explicit text messages. An offer or a threat does not have to be direct and specific. It can be implied from the circumstances.
For example, we successfully won a case where a thirty-five-year-old, married, restaurant manager asked his female subordinate, a teen age server, to go to Las Vegas with him for the weekend and stay in his room with him. He was at the time the manager in charge of putting the servers on the schedule. In such case, this was sufficient “quid pro quo” sexual harassment even though there was no direct threat or promise that the female was required to engage in sexual activity or else be left off the schedule or given fewer desirable shifts.
The important case in California on this issue is Mogilefsky v. Superior Court (1993) 20 Cal.App.4th 1409, which establishes that a direct threat or offer is not required; rather, it can be as little as a mere discussion of sexual acts or behavior that could lead to sexual acts that will create a victory for quid pro quo sexual harassment.
In these types of cases we have successfully handled, like were present in Mogilefsky, there were sexual propositions [“why don’t you stay later after work, we can have some drinks and go to my place”], unwelcomed graphic discussion of sexual acts [“do you like your p____y eaten?” “Spitters are quitters”], and verbal discussions about the victim’s body and the sexual uses to which it could be put [“come here big Mama, let me slap that a___,” “I would lick your p___y ‘til you come,” “you know what they say about women who wear white pants, they like it in the a___.”]. Such types of commentary and conduct are the same kinds of language and conduct that were expressly defined as being illegal in the case of Mogilefsky, see discussion at page 1414 of the case decision.
“Quid pro quo” sexual harassment exists even if it is a lone comment, and it does not require actual sexual activity to occur. It is enough to prove a case for “quid pro quo” sexual harassment from the mere words alone, provided there is a link between the sexually tinged language and a threat or an offer related to the job. A single time can be enough for us to win your lawsuit.
“Hostile Work Environment” Sexual Harassment
Most of our clients contact us to help them for this type of sexual harassment. It is important to understand right from the beginning, that “hostile work environment” does NOT mean a boss that yells or is demeaning or is rude. “Hostile” does not mean what people think it means in this context.
Instead, “hostile work environment” requires proof of several, distinct elements or else it is not “sexual harassment.” For us to take on a case and be successful, the client’s complaints about the harasser’s conduct must fit within four specific categories of “unwanted harassing conduct” as defined in Title 2 of the California Code of Regulations, section 11019 “Terms, Conditions and Privileges of Employment,” subsection (b)(2) that defines “harassment” as follows:
“(2) Harassment includes but is not limited to:
- Verbal harassment, e.g., epithets, derogatory comments or slurs on a basis enumerated in the Act;
- Physical harassment, e.g., assault, impeding or blocking movement, or any physical interference with normal work or movement, when directed at an individual on a basis enumerated in the Act;
- Visual forms of harassment, e.g., derogatory posters, cartoons, or drawings on a basis enumerated in the Act; or
- Sexual favors, e.g., unwanted sexual advances, which condition an employment benefit upon an exchange of sexual favors.”
As shown, subsection “D” is just a restatement of what we already know to be “quid pro quo” sexual harassment.
California’s Department of Fair Employment and Housing sets out these very basic definitions of “unwanted harassing conduct” here:
Visual forms of harassment must be directed at the alleged victim or toward a specific gender. Taylor v. Nabors Drilling USA (2014) 222 Cal.App.4th 1228, 1236. Visual images must either be: (1) of a sexual nature, or (2) of a hostile nature based on gender. Ramirez v. Wong (2010) 188 Cal.App.4th 1480, 1487.
Not every perceived lewd image constitutes sexual harassment. In the Herberg case, two art students depicted several teachers in sexually-suggestive positions with each other. The drawing was displayed for a period of 24-hours in a gallery while administrators decided whether to remove it. The California Court of Appeal rejected the teachers’ claims of sexual harassment because the 24-hour display of the image was not sufficiently pervasive. Herberg v. California Inst. of the Arts (2002) 101 Cal.App.4th 142. So, even though the image was lewd, and it offended the victims, the image was not “sexual harassment” within the definitions of the statutory and case law, and thus the victims did not win their case. This is a great example that just because something of a sexual nature is offensive to the victims, whether an image, like the Herberg case, or it could have been words or other conduct, what is offensive to the victims does not always amount to “sexual harassment” in California.
What is important for clients to understand, is that in addition to “harassment” as particularly defined in the Code of Regulations, case law has developed over the years which requires us to prove several other things to win a case. These additional requirements come from the case law that developed over the years, both in California and in the federal courts, and is constantly changing. An attorney who does not specialize in this type of litigation, where judges must be constantly educated by new cases that come down every week, where a brand-new case law decision may dramatically change the landscape overnight, is not capable of representing a client who comes in to see them for a sexual harassment case.
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Be wary of any lawyer who claims to be a “sexual harassment” lawyer unless the lawyer has a long and successful track record of winning these exact types of cases at trial. Just because a lawyer may have won a different type of case at trial, whether a slip and fall case, a car accident case, a wrongful death case or a catastrophic injury case and may be able t spin a tall tale of how good they are in front of a jury, don’t fall for the slick marketing.
These sexual harassment cases are extremely difficult to successfully get across the finish line and win for the clients. There are lots of traps, and pitfalls, and the learning curve is very steep. A rookie lawyer in this area can mess up a case beyond repair, from not understanding the law, missing deadlines, or not knowing how to exploit the critical facts in the case that favor the victim.
Don’t take a chance with an inexperienced attorney who has no business taking on your case in this specialized area. Pick a lawyer who knows the law, knows the nuances, and has a demonstrated track record of success in bringing home big verdicts and big settlements for our clients.
We stay on top of these changes in the law, and we know these cases and nuances like the back of our hand. Remember, new cases arise every day which change whether we may be able to win your case or not. The governing statutes are constantly changing, for example, like starting on January 1, 2019, Senate Bill 1300, which added brand new laws to the books, and tossed out old cases that were favorable for the employers. We talk about this below.
Only an experienced sexual harassment trial attorney, doing this work every day, and specializing in this type of case work can truly stay on top of this and win your case for you. It is so important that clients get a knowledgeable, skilled attorney with trial experience for this reason.
We explain both the law, and how the law is applied in a jury trial, so you can see whether your situation falls within the definition of what is sexual harassment in the workplace in California.
As the case law developed, certain critical principles emerged and must be known and mastered by your lawyer. Or else, your lawyer cannot explain to you whether what happened to you is truly sexual harassment or not, and whether you have a case or not.
The starting point is the actual law that will be used to decide the case at the end by the jury. The trial judge in a sexual harassment case instructs the jurors on the law of the case at the end. The law is also given to the jury in written form, and the jury, following the law based on the facts they decide were proven at trial, decides if there really is a case for sexual harassment or not.
The law is openly available to the public. It is updated regularly, with the most current edition here, in pdf format:
In sexual harassment in particular, one critical jury instruction is set forth at CACI 2522a, “Hostile Work Environment Harassment,” and is used in every sexual harassment jury trial for hostile work environment sexual harassment claims.
CACI 2522a is the correct statement of the law as set forth under Government Code section 12940(j), and lists the several requirements we must prove in “hostile work environment” sexual harassment cases against the harasser:
“Plaintiff claims that harasser subjected [him/her] to harassment based on gender, causing a hostile or abusive work environment. To establish this claim, Plaintiff must prove all of the following [items in brackets are edited for each specific case, depending on the facts of each case]:
- That Plaintiff was [an employee of/a person providing services under a contract with/an unpaid intern with/a volunteer with] [name of employer];
- That Plaintiff was subjected to unwanted harassing conduct because [he/she] was [protected status, e.g., a woman];
- That the harassing conduct was severe or pervasive;
- That a reasonable [e.g., woman] in Plaintiff’s circumstances would have considered the work environment to be hostile or abusive;
- That Plaintiff considered the work environment to be hostile or abusive;
- That [name of defendant] [participated in/assisted/ [or]encouraged] the harassing conduct;
- That Plaintiff was harmed; and
- That the conduct was a substantial factor in causing Plaintiff’s harm.”
This is what every single sexual harassment lawyer must prove in order to win the client’s case for hostile work environment sexual harassment. If all the above can be proven to a standard of more likely true than not true, then the victim wins the sexual harassment case.
So, in determining what the definition of “sexual harassment” is in California, one must take into account that each of the above elements must be proven, or else it is NOT considered “sexual harassment” in California.
For example, if the client is an employee, then element 1 is proven. Element 2 requires proof of the “harassing conduct” as defined in the Code of Regulations, and can be verbal, physical, or visual harassment, or sexual favors or unwanted sexual advances. The client alone can prove that from his or her own testimony. So, if solely these two elements are proven, that is, that the client is an employee subjected to “harassing conduct,” that is STILL NOT enough to fit within a case for “hostile work environment” sexual harassment. The client still needs to prove the rest of the elements, 3 through 8 or there is no case.
In fact, we get calls from prospective clients all the time who tell us that their boss made a crude remark, and now the client wants to sue for sexual harassment. Element 3 above is designed to weed out these types of cases, where the “harassing conduct” is not severe [such as “if you were not married, I would take you out,” or “let’s go have a drink, don’t bring your husband?”] or not pervasive, like a single slap on the buttocks or a casual glance of a body part or an inappropriate, lingering hug a single time. If the harassing conduct is not severe or pervasive, then it is not considered “hostile work environment” sexual harassment.
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It seems obvious, too, that sexual advances must be unwelcome or they do not constitute unlawful sexual harassment. Meritor Savings Bank v. Vinson (1986) 477 U.S. 57, 65; and see California Code of Regulations, title 2, section 11019.
“Unwelcome” is looked at two ways, both from the perspective of the victim, and externally, using a “reasonable person” standard, which is simply another way for the law through a jury trial to second guess whether the conduct at issue was in fact so bad that the harasser or employer must pay money for he harm that occurred to the victim. The “reasonable victim” standard looks at whether a reasonable person of the same sex as the victim would consider the comments sufficiently severe or pervasive. Ellison v. Brady (9th Cir. 1991) 924 F.2d 872. Under this standard, “unwelcome” would be interpreted from the perspective of the victim. There would not need to be any objective request to stop the offending conduct. So, a harasser could not even realize their conduct was unwelcome, and it could still constitute unlawful sexual harassment. See also the California case of Miller v. Department of Corrections (2005) 36 Cal.4th 446, 462. Additionally, even if the victim consented to sexual activity, continuing sexual comments may be considered to be unwelcome. The key concept to remember is that even where a person is not forced to engage in sexual behavior does not mean that they want to engage in that sexual behavior. This is the Meritor Savings Bank v. Vinson case.
We have successfully won cases like this as seen from the eyes of the victim, even where the harasser steadfastly denies any intent to harass or engage in improper sexually demeaning conduct. We have won cases where the harasser boasts about the size of his sexual organ, his past sexual exploits or his ability to satisfy his sexual partners or sexual performance. We have won cases where men and women have openly talked about sexual jokes, and sexual exploits, including engaging in different sex acts or threesomes. We have won cases where the harasser regularly engages in double entendres. All these cases involved a harasser who denied intending to do anything harmful and said he or she were “just joking.”
What is Severe?
Unwanted physical touching if based on sexual desire is always illegal and is often “severe” enough to constitute sexual harassment, even if it happens only one time. California Code of Regulations, title 2, section 11019, subsection (b). Whether physical touching of a non-sexual body part is severe or not is not so clearly defined. For example, simply hugging may or may not cross the line depending upon the circumstances. The critical inquiry is whether it was severe or pervasive enough to create an abusive working environment. See, for example, the federal court case of Fuller v. City of Oakland (9th Cir. 1995) 47 F.3d 1522, 1527.
Other specific examples from decided cases help define what is in fact severe enough to constitute hostile work environment sexual harassment: crotch-grabbing, butt-grabbing and pinching, mouth to breast touching, thigh rubbing, genital touching and repeated breast touching. Federal case of Rene v. MGM Grand Hotel, Inc. (9th Cir. 2002) 305 F.3d 1061, 1065–66, and the case of Kelley-Zurian v. Wohl Shoe Co. (1994) 22 Cal.App.4th 397, 409.
Over time, the case law developed specific case examples showing what was not severe enough to constitute hostile work environment sexual harassment: a single instance of breast grabbing is not severe enough according to a federal law case of Brooks v. City of San Mateo (9th Cir. 2000) 229 F.3d 917, 926–927, nor was it severe enough where on two separate occasions a supervisor rubbed his arm against the victim’s breast. Mokler v. County of Orange (2007) 157 Cal.App.4th 121, 145–146. An isolated incident of sexually-charged horseplay, by definition is not pervasive, and is also not severe enough to create hostile work environment sexual harassment, according to one federal case. Candelore v. Clark County Sanitation District (9th Cir. 1992) 975 F.2d 588, 590. Sexual jokes, offers, or innuendo, while often times harmful, may not be severe enough to prove this element. Comments “tinged with offensive sexual connotations” are not enough to constitute unlawful sexual harassment. Lewis v. City of Benicia (2014) 224 Cal.App.4th 1519, 1525–26.
However, these rules from the Brooks, Mokler, Candelore and Lewis and cases are now no longer good law as of January 1, 2019. Governor Brown’s signature on Senate Bill 1300, among other things, clarified the law regarding “severe or pervasive” and rejected several employer-developed erosions of the protections to employees from sexual harassment. There is now strong protection for even single-incident types of sexual harassment cases.
Senate Bill No. 1300, signed into law by Governor Brown amended the California Fair Employment and Housing Act (FEHA) in several dramatically important ways. First, employers are no longer allowed to bury and hide their dirty deeds in a stifling “confidentiality agreement” that prohibits disclosure of the details of the case, and the settlement. In short, now, employers cannot force a “nondisclosure agreement” when the employer settles a case. Second, it also prohibits, in exchange for a raise or bonus, or as a condition of employment or continued employment, an employer from requiring the execution of a release of a FEHA claim or the signing of a nondisparagement or nondisclosure agreement related to unlawful acts in the workplace, including sexual harassment.
The new law also extends the employer’s potential liability to now include nonemployees’ sexual harassment or other unlawful harassment of the employer’s employees, applicants, unpaid interns, volunteers, or contractors, if the employer or its agents or supervisors knew or should have known of the conduct and failed to take immediate and appropriate corrective action.
Finally, in a much-anticipated reprieve of onerous case law that had chipped away at the protections for employees, the new law specifically outlawed earlier case law in several significant ways.
SB 1300 categorically rejected two employer-friendly federal court cases, making it harder for the employers to deny the employee victim their day in court before a jury. The new law overturns the rule from US Supreme Court case of Harris v. Forklift Systems (1993) 510 U.S. 17, instead making the rule employee-friendly, by establishing that the FEHA applies the lower standard that: “‘the plaintiff need not prove that his or her tangible productivity has declined as a result of the harassment.’ It suffices to prove that a reasonable person subjected to the discriminatory conduct would find, as the plaintiff did, that the harassment so altered working conditions as to ‘make it more difficult to do the job.’” The new law also tossed out the employer-friendly rule from the case of Brooks v. City of San Mateo, 229 F.3d 917 (2000). SB 1300 expressly overturned Brooks’s nauseating “single grope” rule for claims brought under FEHA. Gov’t Code § 12923(b). Now, a single incident of harassing conduct is enough to defeat the employer’s effort to throw the case out of court before it reaches a jury and thereby create a triable issue of hostile work environment harassment, provided that the harassing conduct has unreasonably interfered with the plaintiff’s work performance or created an intimidating, hostile, or offensive working environment. That means that employers cannot smugly and arrogantly drag the victim through the litigation process for years only to get the court to toss the case before it reaches a jury. Now, the employers will have to answer to a jury for even a single incident of harassment. If there is an incident of harassment, it means the case should get to a jury, thus making it easier for employee-victims to get justice.
SB 1300 also removes another employer-friendly argument. The new law clarifies that there is but one standard now for whether the conduct violates the law, there is no piecemeal application depending on the type of workplace, and finally, it is irrelevant that an occupation may have been characterized by a greater frequency of sexually related commentary or conduct in the past. Thus, this new law overturns the employer-friendly rule set forth in Kelley v. The Conco Companies (2011) 196 Cal.App.4th 191.
SB 1300 also eliminated another employer-friendly rule, oftentimes called the “stray remarks” defense. In the past, the employer could argue that even though it was true that there was verbal harassing conduct, the employer would argue that it was merely a “stray remark” and thus not enough to impose liability upon the employer. This rule made it very difficult for employees to use such evidence to help win a case. Fortunately, this horrible, judicially-created “stray remark” rule is gone. The new rule, consistent with Reid v. Google Inc. (2010) 50 Cal. 4th 512, is that everything is taken into context.
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Whether it is a single remark, or not, the existence of a hostile work environment claim depends upon the totality of the circumstances. A discriminatory remark, even if not made directly to the victim, or in the context of an employment decision or uttered by a nondecision maker, all of it counts towards proving liability on the employer.
It is important to understand that judicial hostility to sexual harassment cases often came from the very judges responsible for determining whether a victim could recover. That is all changed now, thanks to the new SB 1300, which makes it more likely that victims of sexual harassment will get their day in front of a jury.
The sorts of conduct that can be used to prove “severe” or “pervasive” harassment is highly disputed in these cases, and in the past, employer-friendly courts ruled against victims finding that workplace behavior that most women would find abusive was neither “severe or pervasive.” For example, in the now discredited case of Brooks v. City of San Mateo (9th Cir. 2000) 229 F.3d 917, the justices of the Ninth Circuit Court of Appeals held that a single incident in which a fellow employee touched a plaintiff’s breast under her sweater, while very offensive, did not rise to the level of “severe or pervasive” harassment for which Title VII and FEHA offer a remedy. On this basis, the appellate court upheld the trial court’s order throwing out the case before it got to a jury. Is it coincidental then, that last year, Justice Alex Kozinski, the author of the now discredited decision in Brooks, (one free breast grab, no problem!) stepped down from his seat on the Ninth Circuit rather than face an investigation into complaints of harassment by numerous women, including his former employees?
For even further, in depth analysis, the new law which takes place starting in January 2019, is discussed by the California legislative analyst here:
The new law, Cal. Gov’t Code section 12923, set forth below, specifically affirms the principles of key cases that protect employees, and specifically discussed several cases where employers were eroding the protections for employees: rejecting the case of Brooks v. City of San Mateo (2000) 229 F.3d 917 [Brooks held that a single incident of harassing conduct is not sufficient to create a triable issue regarding the existence of a hostile work environment; under section 12923, a single incident IS sufficient provided the harassing conduct has unreasonably interfered with the plaintiff’s work performance or created an intimidating, hostile, or offensive working environment]; affirming the rule of Reid v. Google, Inc. (2010) 50 Cal.4th 512 [and as well, under section 12923, the existence of a hostile work environment depends upon the totality of the circumstances and a discriminatory remark, even if not made directly in the context of an employment decision or uttered by a nondecisionmaker, may be relevant, circumstantial evidence of discrimination]; and rejecting Kelley v. Conco Companies (2011) 196 Cal.App.4th 191 [Kelley held that the legal standard for sexual harassment should vary by type of workplace; now, under section 12923, it is irrelevant that a particular occupation may have been characterized by a greater frequency of sexually related commentary or conduct in the past. In determining whether or not a hostile environment existed, courts are only to consider the nature of the workplace when engaging in or witnessing prurient conduct and commentary is integral to the performance of the job duties].
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THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 12923 is added to the Government Code, immediately following Section 12922, to read:
The Legislature hereby declares its intent with regard to application of the laws about harassment contained in this part.
- The purpose of these laws is to provide all Californians with an equal opportunity to succeed in the workplace and should be applied accordingly by the courts. The Legislature hereby declares that harassment creates a hostile, offensive, oppressive, or intimidating work environment and deprives victims of their statutory right to work in a place free of discrimination when the harassing conduct sufficiently offends, humiliates, distresses, or intrudes upon its victim, so as to disrupt the victim’s emotional tranquility in the workplace, affect the victim’s ability to perform the job as usual, or otherwise interfere with and undermine the victim’s personal sense of well-being. In this regard, the Legislature affirms its approval of the standard set forth by Justice Ruth Bader Ginsburg in her concurrence in Harris v. Forklift Systems (1993) 510 U.S. 17 that in a workplace harassment suit “the plaintiff need not prove that his or her tangible productivity has declined as a result of the harassment. It suffices to prove that a reasonable person subjected to the discriminatory conduct would find, as the plaintiff did, that the harassment so altered working conditions as to make it more difficult to do the job.” ( at 26).
- A single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment if the harassing conduct has unreasonably interfered with the plaintiff’s work performance or created an intimidating, hostile, or offensive working environment. In that regard, the Legislature hereby declares its rejection of the United States Court of Appeals for the 9th Circuit’s opinion in Brooks v. City of San Mateo (2000) 229 F.3d 917 and states that the opinion shall not be used in determining what kind of conduct is sufficiently severe or pervasive to constitute a violation of the California Fair Employment and Housing Act.
- The existence of a hostile work environment depends upon the totality of the circumstances and a discriminatory remark, even if not made directly in the context of an employment decision or uttered by a nondecisionmaker, may be relevant, circumstantial evidence of discrimination. In that regard, the Legislature affirms the decision in Reid v. Google, Inc. (2010) 50 Cal.4th 512 in its rejection of the “stray remarks doctrine.”
- The legal standard for sexual harassment should not vary by type of workplace. It is irrelevant that a particular occupation may have been characterized by a greater frequency of sexually related commentary or conduct in the past. In determining whether or not a hostile environment existed, courts should only consider the nature of the workplace when engaging in or witnessing prurient conduct and commentary is integral to the performance of the job duties. The Legislature hereby declares its disapproval of any language, reasoning, or holding to the contrary in the decision Kelley v. Conco Companies (2011) 196 Cal.App.4th 191.
- Harassment cases are rarely appropriate for disposition on summary judgment. In that regard, the Legislature affirms the decision in Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243 and its observation that hostile working environment cases involve issues “not determinable on paper.”
Sexual harassment cases may also be filed as common law tort claims, with a longer statute of limitations, and with no requirement of “severe or pervasive.” So, even where the physical conduct or the jokes were not sufficiently severe enough to create hostile work environment sexual harassment, this type of case can still be filed as a common-law assault or battery case. It is for that reason that anyone who has been physically touched in an improper manner speak with an experienced sexual harassment litigation attorney who can evaluate whether a case still has vitality under a different legal theory despite the historical case law suggesting that a sexual harassment claim may not be viable. Brand new lawyers will not understand these nuances, nor the historical case law, and it is therefore important to have a seasoned litigator skilled with plenty of trial experience in these cases to help you.
What is Pervasive?
If the conduct is not severe, then it must be “pervasive,” a fancy legal way of saying it happened more than once, and most judges require that there be more than one instance of unlawful conduct to create a hostile work environment. In this type of case, a client would have to show a concerted pattern of harassment of a “repeated, routine, or a generalized nature.” Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590 at 610.
Illegal harassing behavior includes comments made over time, such as “epithets, derogatory comments, or slurs” and constitutes hostile work environment sexual harassment, and this include any comments that demonstrate hostility toward a specific protected group, such as women. Lyle v. Warner Brothers Television Prods. (2006) 38 Cal.4th 264, 281. Case law examples define sexual harassment to include repeated, sexist comments using demeaning, gender-specific terms. Miller v. Department of Corrections (2005) 36 Cal.4th 446, 465–466. Even crude practical jokes may expose the harasser and the employer to liability, even though they are not conduct of a sexual nature. Accardi v. Superior Court (1993) 17 Cal.App.4th 341, 349.
Demeaning language used over time, such as phrases like “fu**ing b*tch” and one time use of the “C” word “c*nt” is severe and pervasive enough to impose liability. Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 281-282. Also, regular use of gender-specific demeaning phrases such as dumb fu**ing broads” was sufficient to impose liability, because it was language directed specifically at women and used gender-specific, demeaning language.
Widespread Sexual Favoritism:
Clients often come to us complaining that there is sexual favoritism at their workplace.
- My co-worker is sleeping with the boss and got promoted. It is not fair. I don’t think she should have gotten promoted for doing that. Can I sue for sexual harassment?
- My boss hit on me. I turned him down and that was that. Then later on he hit on another co-worker and she got promoted. It is not fair. Can I sue for sexual harassment?
- My boss is flirtatious, and rumor is he was sleeping around with co-workers. I’m married and don’t want to do that to move up in the company. It is not fair that others may have gotten promoted for sleeping with the boss. Can I sue for sexual harassment?
The simple answer is: Yes, and it also depends on proving enough other facts that show it was a hostile work environment meaning the boss sleeping with the co-worker or co-workers was so severe or pervasive enough that it altered the victim’s working environment and created a hostile work environment.
So, even though the answer is straightforward, what are the circumstances that would need to exist to win the case? This area of the law is constantly changing, even over the past ten years due to the national outrage over the Harvey Weinstein cases, and the evolving attitudes among the judiciary that the conduct that was once looked at as no big deal, is now a very big deal and no longer acceptable.
Even so, the case law from 20 years ago still is a hurdle to overcome in order to try to win a case like this. In a case like this, to win, a client would have to overcome a crystal-clear statement of law that says “a romantic relationship between a supervisor and an employee does not, without more, give rise to a sexual discrimination or sexual harassment claim either under the FEHA or the public policy of the state.” Proksel v. Gattis (1996) 41 Cal.App.4th 1626, 1631.
An employee can sue for sexual harassment, because the boss is sleeping with a co-worker and the co-worker got promoted but not the client. But that case may not be a winner. Even though the circumstances of why such a situation could allow an employee to sue for sexual harassment is straightforward, intuitive, and comes out of the case of Miller v. Dept. of Corrections (2005) 36 Cal.4th 446.
The widespread sexual favoritism must be severe or pervasive enough to alter the victim’s working conditions and create a hostile work environment.” Miller, 36 Cal.4th at 466. “[S]exual favoritism by a manager may be actionable when it leads employees to believe that ‘they [can] obtain favorable treatment from [the manager] if they became romantically involved with him’, the affair is conducted in a manner ‘so indiscreet as to create a hostile work environment,’ or the manager has engaged in ‘other pervasive conduct . . . which created a hostile work environment.’ ” Miller, 36 Cal.4th at p. 465, internal citations omitted.)
So, in this scenario, to win the case the client would need more facts showing that the boss or the co-worker were being indiscreet, such as openly bragging about the affair, or getting promoted, or taunting others who were not promoted about getting promoted specifically for sleeping with the boss. Every case is different, and for that reason, only an experienced sexual harassment trial lawyer can truly help you if this is your type of case.
Element 4 is designed to weed out a case involving a super-sensitive victim. For example, if a reasonable woman might not be offended by a boss complimenting his secretary on her nice outfit, then even if the secretary took the compliment as unwanted, harassing conduct, element 4 would not be met since the compliment is not something that a reasonable woman would have felt was out of place in an office setting. “To be actionable, ‘a sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would ﬁnd hostile or abusive, and one that the victim in fact did perceive to be so.’ That means a plaintiff who subjectively perceives the workplace as hostile or abusive will not prevail under the FEHA, if a reasonable person in the plaintiff’s position, considering all the circumstances, would not share the same perception. Likewise, a plaintiff who does not perceive the workplace as hostile or abusive will not prevail, even if it objectively is so.” Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 284.
Element 5 is designed to weed out a case where even if the harassing conduct was severe or pervasive and was objectively unreasonable per element 4, in the situation where the client did not consider the harassing conduct to be abusive, the client will have no case. This situation comes up when at the time of the harassing conduct, the victim says things like “oh, it’s okay, it does not bother me,” or when an HR investigator is asking the victim what she wants done to the harasser, such as demotion or firing, and the victim says “don’t do anything, it was not that bad, I’m okay, he does not deserve to be fired.” This is the rule from the Lyle v. Warner Brothers Television Productions case, as well as Ellison v. Brady (9th Cir. 1991) 924 F.2d 872.
Element 6 is required to prove the case against the harasser.
Element 7 is required because if the client did not suffer harm, such as being emotionally upset, then there is no case.
Element 8 is required because it must be the harassing conduct, which is severe or pervasive, that brought about the harm to the client. Every now and then we get a client who comes to us complaining about sexual harassment, only we find out that other, more harmful things were going on in the client’s life that dramatically outweigh the claimed harm from the unwanted harassing conduct. In those cases, we face the challenge of proving that the client’s harm was from the harassment as opposed to something else. This comes up in the context of a California Welfare and Institutions Code section 5150 hold for example, or with an emotionally-driven divorce or bitter child custody dispute. Every case is different, and this element must be considered in the definition.
To prove a case against the employer, there is a critical distinction, an additional element that we need to prove in order to win the case against the employer.
CACI 2521a requires proof of all the same things we have to prove against the harasser, but we also need to prove that EITHER:
- a supervisor engaged in the conduct;
- the employer, through its supervisors or agents, knew or should have known of the conduct and failed to take immediate and appropriate corrective action.
If we prove that a harasser was a supervisor, the employer is strictly liable and is responsible to pay for any settlement or judgment. “[A]n employer is strictly liable for all acts of sexual harassment by a supervisor.” State Dep’t of Health Servs. v. Superior Court (2003) 31 Cal.4th 1026, 1042.
This is important, because when we file a lawsuit, many companies claim that they never knew the harasser was doing the bad acts, and they say they are therefore not responsible for the harm to the victim. That may very well be the case that they did not know and they think they are off the hook, but the law imposes liability upon the employer no matter whether they knew of the harassment or not in the circumstances where the harasser is a supervisor. For this reason, it is important for prospective clients to have a clear understanding of the nature of the work / supervisory relationship between themselves and the harasser.
Critically, even if there is a clear-cut case against an individual harasser, unless the harasser engaging in the conduct is a supervisor, then the employer is not going to be responsible for paying a settlement or judgment unless we also can prove BOTH (1) that the employer knew (or should have known) of the harassing conduct AND (2) that the employer failed to take immediate and appropriate corrective action.
We get calls all the time in cases where the harassment is by a co-worker. So, let’s say that there is a victim’s co-worker, who hits on her, and maybe even gropes her or touches her physically in a sexual way. Let’s also say that the victim immediately reports the harassing conduct, and that the harasser if disciplined or fired. Under such circumstance, the employer did exactly what the law required, that is, it took immediate and appropriate corrective action when it learned of the harassing conduct. In such a case, we would have no case against the employer. Suing the harasser in this case is perfectly legitimate, but unless the harasser is independently wealthy, even if we were to file a lawsuit, typically the harasser has no assets with which to pay a settlement or judgment, or worse, files bankruptcy and the case is worth zero.
So, in most circumstances, where a client gets harassed by a supervisor, such cases are easier to prove, while it is also true that co-worker cases are more challenging and require a further investigation into the assets of the harasser to ascertain whether, even if we win the case, the harasser will be able to pay a settlement or judgment.
So, what kinds of things should a prospective client think about when deciding to give us a call to see if they may have a case?
We know that in every case, the judge will look at our case from the perspective of a reasonable person in the shoes of the alleged victim. Beyda v. City of Los Angeles (1988) 65 Cal.App.4th 511, 519–20. There are several factors we need to look at to determine whether there is enough to make out a case of “sexual harassment:”
The nature of the conduct: how offensive was it? Physical touching is always horrible, inexcusable, and we will almost certainly take a case where this has occurred. This is because physical touching is so intrusive, so offensive and so harmful, that there is no legitimate reason why it is ever taking place in the workplace. And for that reason, too, the more offensive the conduct, the less often it needs to occur to be considered “pervasive.”
The frequency of the conduct: how many times did it take place? If it took place a long time ago, did it continue over a period of months or years with no significant gaps in time so that the conduct was pervasive rather than sporadic or infrequent? Sexual harassing conduct that took place too long ago in the past is not something that we can use to prove a case. If it was too long ago, it does not count. If the harassing conduct takes place every day, then certainly it is of course “pervasive.” But keep in mind, that if has gone on daily, for a long time, then it is either going to be regarded as not unwelcomed [consensual, and thus NOT harassment], or not unreasonable [since if it went on for a period of time with no complaints being made to HR, then the tolerance of the harassing conduct may prove fatal as then it is not subjectively unreasonable because if it was, then the victim would have complained or quit]. Thus, the analysis of frequency is critical, and only an experienced sexual harassment litigation attorney should be asked about this difficult concept and whether there is really a case or not.
The context of the conduct: in what context did the harassing conduct take place? Harassing conduct is never looked at in isolation. Fisher v. San Pedro Peninsula Hospital. Instead, the entire situation will be considered. Did the harassing conduct take place at work, or outside at work? Did the victim and harasser joke around at work, and now it looks like an isolated statement is being taken out of context? Did the victim and harasser exchange text messages of a flirtatious nature, and in isolation, the text messages look like harassing conduct, but, looking at all the text messages it tells a different story? Did the harassing conduct take place where the harasser and victim were alone, or did the harassing conduct take place in front of others? All of these factors are critical to consider, and only an experienced sexual harassment litigation attorney should be guiding you through your decision to pursue a claim.
“The plaintiff’s work environment is affected not only by conduct directed at herself but also by the treatment of others. A woman’s perception that her work environment is hostile to women will obviously be reinforced if she witnesses the harassment of other female workers.” Beyda v. City of Los Angeles (1998) 65 Cal.App.4th 511, 519.
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“To state that an employee must be the direct victim of the sexually harassing conduct is somewhat misleading as an employee who is subjected to a hostile work environment is a victim of sexual harassment even though no offensive remarks or touchings are directed to or perpetrated upon that employee. Generally, however, sexual conduct that involves or is aimed at persons other than the plaintiff is considered less offensive and severe than conduct that is directed at the plaintiff. A hostile work environment sexual harassment claim by a plaintiff who was not personally subjected to offensive remarks and touchings requires ‘an even higher showing’ than a claim by one who had been sexually harassed without suffering tangible job detriment: such a plaintiff must ‘establish that the sexually harassing conduct permeated [her] direct work environment.’ To meet this burden, the plaintiff generally must show that the harassment directed at others was in her immediate work environment, and that she personally witnessed it. The reason for this is obvious: if the plaintiff does not witness the incidents involving others, ‘those incidents cannot affect . . . her perception of the hostility of the work environment.’” Lyle v. WarnerBrothers Television Productions (2006) 38 Cal.4th 264, 284–85.
What Are Some Examples Of Sexual Harassment In The Workplace?
Instead of talking in generalities, we like to use actual examples from cases we won to show the many different types of sexual harassment that happen in the workplace. We have won some of these cases even though the clients went to another lawyer who turned them down and refused to take their cases. Every case is different, but it shows the range of behaviors that give rise to sexual harassment claims and resolve successfully with skilled trial counsel at your side.
A married, female client of ours begins working at a refinery. Her direct supervisor, a married male, starts flirting with her the first day, telling her how beautiful she is. The supervisor drives her around the refinery showing her the work areas, and while driving in the golf cart, the supervisor puts his hand on the female client’s knee while he tells her she is very pretty and calls her “muñeca.” Every day after work, he asks her to go out for drinks. The client politely declines. The supervisor begins texting the female client, asking her out on dates, out for drinks and calls her repeatedly but the female client always declines. He asks her why she won’t go out with him. She tells him she is married, and that she must go to her son’s football games. The supervisor tells the client he wants to go to the football games. The first weekend after she starts at the refinery, the supervisor shows up at female client’s house, parked out in front. He calls her and says he is there for coffee and she should invite him in. She says no. The next week, the supervisor keeps asking the female out for drinks. By the end of the female client’s second week, after the female has rejected all the unwanted sexual advances, the supervisor begins trash talking about the client. One of the coworkers tells the female that the boss is trash talking about her. The client reports to HR and the female client is transferred.
One case we had involved a single, female client who was working at a real estate management company. Her single, female boss talked openly about her own sordid sexual debauchery over the weekends, how she liked to perform various sex acts, and bragged about the different sex partners she had. The female boss texted and emailed photographs of her sexual partners, bragging about their sexual features, and the sexual activity they engaged in. The female boss asked the client about her own sex life, demanding details about the client’s sexual partners, the frequency of her sexual activity and comparing her sex life with the sex life of the boss. The female client reported sexual harassment.
Another case involved a female client who was working in a police dispatch office alone at night. The coworker, who was the harasser, came into the office and sat down next to the female. The harasser said to the female client that she was beautiful, that her boyfriend needed to take care of her better and propositioned her for sexual activity. The female was silent and stunned. While the female client sat in her chair, the harasser got up, walked around the chair, and began to massage the female’s shoulders while talking to her about how her boyfriend needed to take better care of her. The female protested, but the harasser moved his hands lower and groped the female’s breasts.
One case involved a married, male co-worker who wanted to flirt with his married, female co-worker. The harasser came up to the female one day while the two of them were alone in the office. He asked to take her out, but she said no, that she was happily married. He persisted and said to her that he would take her out if she was not married. She laughed it off. He kept asking her out for drinks and called her “pudding pop.” A short time later, she was talking with co-workers, and the harasser’s name came up. The female told the others that the harasser had hit on her. The other co-workers said that he had also hit on them. The female co-worker reported harassment the next work day, and the harasser ended up getting fired.
A married, female client was getting off work, clocking out. Her married, male co-worker approached her and asked her out for drinks. The client politely said no, that she was married, but the harasser persisted. The harasser told the female that he had a hotel room nearby, that he would take her there and show her a good time. The harasser told her that her husband was no good in bed and that he was better. The female reported sexual harassment later to HR.
One case involved a male restaurant manager and several young, female servers, cashiers and bartenders. The male manager sexually propositioned nearly every single young female at the restaurant. He commented about their looks, their body parts, and described the sexual activity that he wanted to do with each of them. He would make these comments in front of others, unashamed about his conduct. The male manager would move close to and press up on the female, grinding his crotch into their backside while making sexual sounds and comments. One day, the male manager told a young female to meet him in the supply closet. When she got there, he went in and closed the door so they were alone. He told her to bend over and pick up some items on a lower shelf. As she did, he slapped her on the butt and said: “Come here, Big Mama!” She ran out terrified. Another female had to also go to a storage closet with the male manager, alone. When she got there, he closed the door. He told her to put her hands up in the air while he stood next to her and pulled a company shirt onto her arms and down onto her body. He told her to pull the shirt down lower so that it was tighter on her chest. Another female co-worker was standing at her work station when the harasser came up to her. The harasser was staring at a group of female customers and began telling the female co-worker how he wanted to have sex with the females he was staring at. He asked the co-worker to have a threesome with him and the woman. Another female co-worker was at her station. The harasser told the female she was beautiful, then commented about her body parts. The harasser asked her to have a threesome with him and another female.
Another case involved a married, male restaurant district manager and his interactions with several female subordinates, including a single, female, assistant manager of one of the restaurants. The district manager invited the female restaurant manager out for dinner and drinks under the guise of talking about work. He had driven to the location from a distant city. He had earlier arranged for a hotel room nearby. The district manager bought a round of drinks, engaged in small talk, then invited the female to go to another bar. The two of them went to another bar and he kept buying drinks for her. He told her he had a hotel room nearby and invited her to the room. She declined and said she needed to go home. He told her he would get her a cab because they had too much to drink. He asked her to go to another bar before he got her a cab. The two of them went to another bar and had more drinks. Instead of getting her a cab, he asked her to go back to his room where he would get her a cab. She was very drunk and agreed. When they got back to his room, he grabbed her and hugged her and tried to remove her clothes. She pushed him off her. He asked her what was wrong, and she told him she wanted to leave. He told her to forget what happened or else. She left the room and got a cab home. She was terrified and never reported it to anyone.
One case involved a young, female pharmacy technician who just started working at a pharmacy. The pharmacist, a single male, started making comments about the female’s body and making sexual advances. He asked for hugs and would linger and grope the female while hugging her. He would use the bathroom and leave the door opened, exposing himself. The pharmacy technician complains, demands that the pharmacist stop harassing her, then he fires her.
One case involved our client, a gay restaurant worker, who overheard his co worker complaining about a male manager who was intoxicated and yelling at the co worker. When our client confronted the manager, the male manager called our client a “wide-set vagina” and threatened to fire him if he didn’t “keep his mouth shut.” Our client reported the incident to the company HR hotline who investigated. The restaurant manager fired the client.
Another case involved a single, female temporary agency employee. She was placed at a real estate company and assigned to work administrative duties for one of the male managers. During her first week on the job, she was walking down the hallway past her boss’s office. He had the door open, was standing, and had his zipper open and his penis out. He was fondling himself and making mouth noises and moaning as our female client walked past the office door. She was aghast. Later that same day, the male manager made a sexual advance to the client. The client reported the incident to the staffing agency, who refused to get involved or say anything to the real estate company.
Another case involved a married, female warehouse worker. At work one day, the company’s female HR manager referred to our client as “tits and tats.” The HR manager made sexual jokes about our client, her breasts and body. Client reports this to the company hotline, and when nothing is done about it, the client received unfair discipline then lawyered up.
Another case involved a married, lesbian female server working the night shift at an all-night restaurant. One night at work, the chef, who is drunk, gropes and fondles the client’s breasts. Client goes to the office and reports the groping to the female restaurant manager who told the client that the male chef is just drunk and not to make a big deal about it. The manager mocks the client for not being attracted to men and encourages the client to try having sex with the male restaurant chefs.
One case involved our client, a married, female administrative assistant on her first day on the job, working for a recreational vehicle dealer. Client’s single male manager tells her that her work duties require her to use her looks to help sell vehicles. The male manager makes unwanted sexual advances, telling the client that she looks good, that she needed to go out for drinks with him, that her husband is not as good in bed as he is, and that she should leave her husband for the male harasser. Client rejects all of the sexual advances. The manager tells client to go into a nearby RV with the manager. When client gets into the RV, the manager gropes the client’s breasts and says no one will hear her. Client escapes from the RV and quickly leaves the work site. She reports sexual harassment later that day to HR, who tells client to forget it because that was just the way the harasser acts and not to take it seriously.
One case involved a transgender client who was working for a temporary agency who had placed the client for work at a warehouse as in inventory picker/stocker. While at work, one of the warehouse managers corners the client and tells our client that he wants her to “suck his dick.” Client refuses and later reports harassment to the temporary agency president who tells client that she is sorry and will investigate it. Instead of looking into it, the temporary agency president moves client to another company, then lets her go claiming bad work performance and lack of work.
Another case involved a female account representative working for an international freight company. Within the first week, client’s direct supervisor, a married male, begins telling client about his sexual fantasies about client and some lesbian coworkers engaging in sex acts. The male manager demands that client use her looks and body to entertain the company’s male and female clients. In the break room one day, the manager gropes client in a sexual manner. Male manager tells client one day that client is wearing white pants that “women who wear white pants like to be fu**ed in the ass.” Client reports sexual harassment to HR. The male manager fires client.
One case involved a male restaurant manager and several female workers. The manager said to the female one day that “I know one day that you will let me bend you over, and on that day, you’ll fall in love with me.” The manager told the females that every time he brought lemon pepper wings home to his wife, he “would get some.” Another time the manager told one of the female workers that he was having sexual fantasies about having sex with her one night at his house. He said he was “screaming her name out loud and had a wet dream then woke up messy.” He would stand near females, would grope them while hugging them, would rub his crotch up against the females as they were bent over working, and would comment about their body parts and sexual fantasies he had with them.
Another case involved a young, single female server working at a restaurant. The male owner talked openly of his sexual fantasies he had with her and asked her if he could fondle her breasts. She refused, then her took her off the schedule.
One case involved a female administrative assistant who was hired to work for the male, sales manager for a manufacturing company. On her first day on the job, the male manager asks her if “she wants to go for a ride on his Harley and feel something exciting between your legs.” She declines. He asks her to to help him clean up his email inbox, which is full and slowing down his computer. She begins to open and read the emails so she can organize them and realizes that the emails were all pornographic and sexual in nature. She complains and he laughs. His coffee mug has naked women on it, and he makes her get him refills all day. He mentions to the female client that one of the workers in the company is a lesbian, but that “if he slept with her, he would turn her straight and “would teach her a thing or two about licking pu**y.”
Another case involved a single, female intern who was a brand-new hire at a mental health counseling center. Her male manager asked her out to lunch on the first day, then every day after that for a week. She felt pressured to go out to lunch with him. The male manager asked the female intern to go out with him for drinks, and when she agreed, he got her drunk then asked her to have sex with him at her house nearby. She gave in, after he pressured her for sex for awhile. She was upset and ended up quitting, then lawyered up.
One case involved a married, male carpenter who was working for a university. The male admissions director asked the carpenter to come to his office. When the carpenter arrived, the admissions director groped the carpenter’s penis and propositioned the carpenter for a sex act. The carpenter told the admissions director to stop it, but the admissions director persisted. The carpenter got up and left, then reported sexual harassment.
Another case involved a female public works department employee who was assigned to work for a male foreman. From the beginning, the male foreman made crude remarks about his sexual prowess, his many affairs with women in the community, and talked about sex constantly. The female complained about sexual harassment but nothing was done.
For more information on Sexual Harassment In The Workplace, a free initial consultation is your next best step. Get the information and legal answers you’re seeking by calling (909) 833-8999 today.
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