What is Sexual Harassment?

The following are all examples of illegal sexual harassment:

• Propositioning for dates or sex
• Telling inappropriate sexual jokes or making inappropriate sexual remarks
• Bringing into the workplace pornographic pictures, materials, or images
• Touching inappropriately including, in some cases, hugging, kissing, rubbing against someone, caressing one’s shoulders or back, or other unwanted physical contact
• Requiring employees to wear certain suggestive clothing
• Gawking or leering
• Making inappropriate comments about an employee’s appearance
• Making statements that women are inferior to men (or vice-versa)
• Attempting to use one’s position as a supervisor to obtain an employee’s acceptance of sexually inappropriate behavior or an employee’s romantic affections

Although it is usually men who sexually harass women, sexual harassment can also include women harassing men, men harassing men, or women harassing women. The perpetrator may be a heterosexual or a homosexual. In the end, sexual harassment occurs whenever someone is subjected to sexually inappropriate behavior because of one’s gender.

What should I do?

If you’ve experienced sexual harassment on the job, you have a responsibility to inform your employer of it (i.e., complain). Doing so is important because, under the law, if employers do not know about the harassment, then they can’t take appropriate and immediate steps to remedy the situation. If they haven’t been given that chance, they may not face liability for the conduct even if it is proved that it occurred.

What if my employer retaliates against me?

An employee has an absolute right to complain about harassment without fear of retaliation by his or her employer. Even if it is found that the conduct did not rise to the level of "harassment," an employer cannot retaliate against an employee for having brought the complaint. Retaliation may include a termination close in time to the complaint, denial of promotions, pay raises, work assignments or leaves of absence, heightened scrutiny of performance, or other similar detrimental action.

What if the sexual harassment continues?

Before you can sue, you have to file a complaint with either the federal Equal Employment Opportunity Commission (EEOC) or the California Department of Fair Employment and Housing (DFEH). Both agencies are charged with investigating such complaints. This is designed to give the employer time to remedy its conduct prior to being sued.

Do I need a lawyer?

If you believe you have taken all the necessary steps and are still unsatisfied with the result, you may need to seek legal counsel about the feasibility of filing a lawsuit. Both Title VII of the federal Civil Rights Act of 1964 and the California Fair Employment and Housing Act give employees a right to sue an employer for violations of their rights and permit recovery of past lost wages and benefits, future wage loss, emotional distress damages, attorney fees and possibly punitive damages, if a violation has been found.

Author Bio:

Elizabeth Riles is a partner at Bohbot & Riles, a women-owned firm in Oakland, California. Ms. Riles received her J.D. from Boalt Hall School of Law, U.C. Berkeley and has been practicing employment law for the last 9 years. She specializes in employment discrimination cases. She has successfully represented employees against a wide variety of businesses and government entities, in matters of race, national origin, sexual orientation, pregnancy, age, disability and gender discrimination, cases of sexual and racial harassment, retaliation, whistle-blowing and wrongful termination. Ms. Riles can help you strike back against discrimination in the workplace. For more information about Ms. Riles or her practice, contact Bohbot & Riles at (510) 273-3111 or e-mail Ms. Riles at eriles@strikebacklaw.com.

When an incident happens

An investigation must be done promptly. In some cases, this means within hours. At the least, while the matter is being investigated, the harasser should be separated from the victim of harassment. If the harasser is the victim’s supervisor, a different person should be assigned to supervise the victim. Many employers believe it is acceptable to maintain the status quo while an investigation is being conducted. The victim is left to continue working with the harasser, a situation now even more unpleasant given the harasser’s knowledge of the complaint. Another common response is to move the victim, not the harasser; to change the victim’s schedule, move the victim’s workplace, put the victim on leave – even if it is not the victim’s choice. A federal case in California suggests that this is an inappropriate response. The victim should not be inconvenienced or penalized, even slightly, for his or her complaint of sexual harassment.

In-house investigations may be incomplete or inaccurate

An investigation of a sexual harassment complaint must be thorough and include, in most cases, interviews of the victim, the harasser, and other witnesses. Many employers, if they do an investigation at all, simply go through the motions. They take down the victim’s story – usually to get all the details in the event of a future lawsuit. Often, the interview is tape recorded or video-taped. However, the harasser receives little or no questioning, and the testimony of third-party witnesses is not obtained.

What to do if you are a victim

If you are a victim of harassment, discrimination, or retaliation, you should seek legal advice before allowing an employer to interview you, especially if the interview will be tape-recorded or video-taped. The investigation must be impartial, done by an objective party, not connected to the conduct in question. Many employers will simply use the harasser’s supervisor or someone under the harasser’s supervision to investigate complaints. Obviously, someone within the control or influence of the alleged harasser is not sufficiently impartial. Likewise, an impartial investigation cannot be done by someone who supervises the harasser and may look bad if the harassment is confirmed to have occurred by the investigation. An investigation should be conducted by someone from outside the company, or at least a separate department of the company.

What the employer is required to do

An employer must do whatever is possible to protect the victim’s confidentiality. While there is a duty to investigate, an employer should not treat the complaint like it’s the latest gossip in the workplace. The matter should be treated seriously, but discreetly. Persons who have no reason to know the details of the allegations should not be informed. Meetings with the victim should be conducted in a confidential manner in a secluded setting.

Confirmation of harassment, discrimination, or retaliation

If the investigation confirms that harassment or discrimination did occur, the employer must take appropriate disciplinary action against the perpetrator. It is not enough to separate the harasser from the victim, although that needs to be done when practicable. The harasser must be shown that this behavior will not be tolerated. In some cases, this may mean that the harasser is fired.

Legal assistance

If you believe you have taken all the necessary steps and are still unsatisfied with the result, you may need to seek legal counsel about the feasibility of filing a lawsuit. Both Title VII of the federal Civil Rights Act of 1964 and the California Fair Employment and Housing Act give employees a right to sue an employer for violations of their rights and permit recovery of past lost wages and benefits, future wage loss, emotional distress damages, attorney fees and possibly punitive damages, if a violation has been found.

Retaliation in the employment context exists when an employer takes some adverse action against an employee for complaining of harassment or discrimination or assisting others in their complaints of harassment and discrimination. Retaliation also exists when an employer takes adverse action against an employee who reports illegal conduct by his or her employer (i.e., whistle-blowing).

You know that you have been unlawfully retaliated against when you can demonstrate that (1) you engaged in some type of protected activity, such as complaining of discriminatory or harassing treatment, whistle-blowing against the company for some illegal activity the company is engaged in, or assisting another employee in a similar kind of complaint; (2) the employer has taken adverse action against you, such as demotion, termination, or other conduct that adversely impacts your ability to work; and (3) you can show that the employer’s claimed “legitimate” reason for taking the adverse action against you is untrue and that the real reason was, at least in part, because you engaged in the protected activity.

If any adverse employment action is taken against you because you have complained or cooperated with another employee who has complained, or reported what you understand and believe to be illegal activity by your employer, your employer may be subject to liability for violating provisions of the California Fair Employment and Housing Act, the California Labor Code, or other state law and analogous federal law. Whether your complaints of discrimination or harassment are found to be valid is unimportant. Once you complain about what you believe to be discrimination or harassment and your employer takes adverse action against you, your employer is subject to liability regardless of whether discrimination and harassment in fact occurred.

I’ve suffered retaliation. What should I do?

Be aware that, whenever possible, you have a responsibility to inform your employer of the retaliatory treatment (this usually does not apply if the retaliatory treatment is a termination). Doing so is important because the law requires that your employer investigate all claims of retaliation and take immediate and appropriate action to remedy the situation.

What if the retaliation continues?

Before any lawsuit can be filed against an employer for harassment, discrimination, or retaliation, an employee must file a complaint with either the federal or state authority charged with investigating such complaints. Although the intended result of such a complaint is to give the employer time to remedy its conduct prior to being sued, in many cases, it is simply a formality that must be taken care of prior to a lawsuit.

You should contact either the California Department of Fair Employment and Housing (DFEH), which is the state agency that investigates retaliation complaints related to discrimination or harassment, or the Equal Employment Opportunity Commission (EEOC), which is the federal equivalent of the DFEH that investigates retaliation related violations of federal civil rights law (Title VII) in employment. There are other agencies, such as the California Office of the Labor Commissioner, that investigate retaliation complaints related to whistle-blowing.

Do I need a lawyer?

If your complaint goes nowhere, you can still strike back in court. The complaint process, both within companies and through the federal and state agencies charged to investigate complaints, can leave employees empty-handed and feeling unsatisfied. Both Title VII of the federal Civil Rights Act of 1964 and the California state Fair Employment and Housing Act give employees a right to sue an employer for violations of their rights. If violations of the law are shown, the employee’s recovery may include his or her past lost wages and benefits, future wage loss, emotional distress damages, the attorney fees and punitive damages. Punitive damages are calculated in part on the earnings of the company.

Author Bio:

Karine Bohbot is a partner at Bohbot & Riles, a women-owned firm in Oakland, California. Ms. Bohbot received her J.D. from UC Hastings College of Law and has been practicing employment law for the last 11 years. She specializes in employment discrimination cases. She has successfully represented employees against a wide variety of businesses and government entities, in matters of race, national origin, sexual orientation, pregnancy, age, disability and gender discrimination, cases of sexual and racial harassment, retaliation, whistle-blowing and wrongful termination. Ms. Bohbot can help you strike back against discrimination in the workplace. For more information about Ms. Bohbot or her practice, contact Bohbot & Riles at (510) 273-3111 or e-mail Ms. Bohbot at kbohbot@strikebacklaw.com.

What constitutes Discrimination?

Discrimination means applying employment decisions such as hiring, firing, promotion, pay raises, benefits, work assignments, leaves of absence or almost any other aspect of employment in a discriminatory way based upon one of the prohibited bases.

I’ve suffered discrimination. What should I do?

You should inform your employer of the discriminatory treatment (i.e., complain). Doing so is important, as the law requires that the employer investigate all claims of discrimination and take immediate and appropriate action to remedy the situation.

What if my employer retaliates against me?

It is illegal for an employer to retaliate against a victim of discrimination. Employers do sometimes retaliate against an employee for raising claims of discrimination — but they do so at their own peril. Retaliation could be any of the following actions: firing, denial of promotions, denial of pay raises, altering work assignments, denial of leaves of absence, or other adverse actions in almost any other aspect of employment. Any such adverse action taken against an employee within a relatively short time period after the employee complains of discrimination will be considered suspect. This is especially so when the employee is terminated shortly after complaining. If an adverse action is later found to be in retaliation for the complaint, the employer will be subjected to separate liability for violation of federal and state laws — whether the discrimination is proven to have occurred or not. An employee has an absolute right to complain about discrimination or harassment without fear of retaliation by his or her employer.

What if the discrimination continues?

Before any lawsuit can be filed against an employer for discrimination, an employee must file a complaint with either the federal or state authority charged with investigating such complaints. This is designed to give the employer time to remedy its conduct prior to being sued. In many cases, it is simply a formality that must be taken care of prior to a lawsuit.

The Department of Fair Employment and Housing (DFEH) is the state agency that investigates complaints of violations of state employment discrimination laws. The Equal Employment Opportunity Commission (EEOC) is the federal agency that investigates complaints of violations of federal civil rights law (Title VII) in employment.

Do I need a lawyer?

If your complaint goes nowhere, you can still strike back in court. The complaint process both within companies and through the federal and state agencies charged to investigate complaints can leave employees empty-handed and feeling unsatisfied. Both Title VII of the federal Civil Rights Act of 1964 and the California Fair Employment and Housing Act give employees a right to sue an employer for violations of their rights. If violations of the law are shown, the employee’s recovery may include his or her past lost wages and benefits, future wage loss, attorney fees, and punitive damages. Punitive damages are calculated in part on the earnings of the company.

Author Bio:

Elizabeth Riles is a partner at Bohbot & Riles, a women-owned firm in Oakland, California. Ms. Riles received her J.D. from Boalt Hall School of Law, U.C. Berkeley and has been practicing employment law for the last 9 years. She specializes in employment discrimination cases. She has successfully represented employees against a wide variety of businesses and government entities, in matters of race, national origin, sexual orientation, pregnancy, age, disability and gender discrimination, cases of sexual and racial harassment, retaliation, whistle-blowing and wrongful termination. Ms. Riles can help you strike back against discrimination in the workplace. For more information about Ms. Riles or her practice, contact Bohbot & Riles at (510) 273-3111 or e-mail Ms. Riles at eriles@strikebacklaw.com.