What To Do If You Believe You Were Sexually Harassed At Work
First things first: REPORT IT.
You should always notify your employer when you believe you are being sexually harassed at work. You should check your employee handbook to see if there are any procedures that provides guidance on making a formal complaint. If you’re unsure how to go about it, reach out.
Once your employer has notice of your complaint, they should take prompt action to investigate and promptly respond.
Workplace sexual harassment is illegal under both Federal law, Title VII of the Civil Rights Act of 1964, and California law, Cal. Gov’t Code § 12940(j)(1).
What must my employer do if I was sexually harassed?
Your employer is required to intervene promptly and effectively to put an end to workplace sexual harassment.
Once an employer knows or should know of harassment, a remedial obligation kicks in and your employer must take adequate remedial measures. These actions should be “reasonably calculated” to end the harassment.
The 9th Circuit, which California state courts routinely rely on, has held that not only must the remedies be reasonably calculated to end the harassment, but that they be of a disciplinary nature.
The “appropriateness of the remedy depends on the seriousness of the offense, the employer’s ability to stop the harassment, the likelihood that the remedy will end the harassment, and ‘the remedy’s ability to persuade potential harassers to refrain from unlawful conduct.’”(Intlekofer v. Turnage (9th Cir. 1992) 973 F.2d 773, 779 (citing Ellison v. Brady (9th Cir. 1991) 924 F.2d 872, 882).
Unsure if your employer has done enough? Call us.
Can I be sexually harassed if I’ve had a relationship with my harasser?
Yes. Even if you have had a prior relationship with your harasser, your harasser may still engage in conduct that constitutes sexual harassment.
Who is liable for sexual harassment?
In California, the perpetrator of the harassment is held liable. Also, your employer is held liable for sexual harassment if it knew or should have known of the harassment.
Harassment Perpetrated by a Supervisor
If your supervisor is the harasser, then your employer is automatically liable for the harassment whether or not your employer knew or should have known of the harassment.
Harassment Perpetrated by a Co-worker
If a co-worker is the harasser, the company must have been on notice of the harassment. This can be done through an oral or written complaint made by the person being harassed or someone else, to the company, either through human resources or someone in management. It can also be proven if a manager has witnessed the harassment.
What if I never complained or delayed in complaining about my supervisor’s harassment?
Whether this potentially bars or limits recovery depends on a few things.
Supervisor Harassment:
If a supervisor is the harasser and there is a “tangible employment action” made against the victim, then the victim’s damages are not limited or barred.
What is a “tangible employment action”?
Some examples include, a reduction in bonus, demotion, transfer, or termination.
If there is no “tangible employment action” taken against you, your recovery may be limited or barred entirely if you could have avoided the damages you suffered by reasonable effort or expenditure.
This applies where:
(1) the employer took reasonable steps to prevent and correct workplace harassment,
(2) the employee unreasonably failed to use those preventive and corrective measures, and
(3) a reasonable use of the employer’s procedures by the victim would have prevented at least some of the harm the victim suffered.
This raises questions of whether the employer has an adequate anti-harassment policy or adequate procedures to enforce the police and whether the employer communicated those policies and procedures to the employee.
If an employee delayed or did not report at all, the victim must have acted reasonably in doing so. Here are some factors to consider -
employee’s feelings of embarrassment, humiliation or shame
employer failed to investigate earlier harassment complaints
employer failed to act on findings of harassment
employer retaliated against complainants
employer’s procedure requiring victims to complaint first to her supervisor who is the alleged harasser
Coworker Harassment:
If a coworker is the harasser, then the employer will only be liable if the employer knows or should have known of the harassment and fails to take immediate corrective action.
Unsure about how to handle workplace harassment? Reach out.
DISCLAIMER: this information is general in nature and does not constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed.