California’s Fair Employment and Housing Act, which applies to any business with more than one employee, makes harassment based on sex, gender, gender identification, sexual orientation unlawful. (Courtesy photo)

Building a case for sexual harassment

Today’s question comes from Marsha G. in San Francisco who writes:

Q: I am being sexually harassed at work. I complained about the conduct of “dick pics” and other unwanted sexual texts and emails to my boss, and the guy who sent them, and told him to stop but he continued so I reported it to the regional manager. Turns out they are literally frat buddies and they worked together to write me up for a bogus infraction and fire me. I feel like this was harassment and retaliation. I sent an email complaining to HR. They want me to go to mediation. Do I have a case? What options do I have? What exactly does mediation involve and do I need a lawyer?

A: Dear Marsha; I wish I could say that this comes as a surprise but, having done employment law for 25 years now not much does. I can remember my first “dic-pic” case and couldn’t believe how stupid of the offender to send the evidence much less how entitled he felt to invade my client’s rights, privacy and security. Shamefully, although prevention and enforcement have improved over the past 25 years, there is still a stagnant pool of knuckle draggers who haven’t been informed that sexist and misogynistic behavior is illegal. The #metoo movement has been a tremendous catalyst for the expansion of awareness and our employee rights department is seeing a dramatic increase in the number women reaching out for legal assistance.

Under California’s Fair Employment and Housing Act (FEHA), encapsulated within Government Code 12940, harassment based on sex, gender, gender identification, sexual orientation (as well as race, etc.) is unlawful. The law applies to any business with more than one employee. Harassment can be one of two types, quid-pro-quo, like a movie mogul saying if you have sex with me you will get this part, or the existence of hostile environment where unwanted behavior is severe and /or pervasive. A key element is a showing that the conduct was unwanted.

California Civil Jury Instruction No. 2524 sets forth the elements of a hostile environment claim. “Severe or pervasive” means conduct that alters the conditions of employment and creates a hostile or abusive work environment.” Juries are instructed to consider the following in analyzing whether the facts present a case of sexual harassment: a) the nature of the conduct; b) how often, and over what period, the conduct occurred; c) the circumstances under which the conduct occurred;(d) whether the conduct was physically threatening or humiliating; and e) the extent to which the conduct unreasonably interfered with an employee’s work performance. If you are employed in California, you are covered under the FEHA unless you work for the Federal Government where Title VII of the Civil Rights Act applies.

An employee is liable individually for their own sexual harassment and an employer may be liable under several different circumstances 1) where the employer has failed to take steps to prevent discrimination and harassment, 2) where the employer knows, or because of the circumstances should have known, about the conduct and fails to engage in prompt and sufficient remedial measures to put a stop to the conduct, and/or 3) when the harassment is done by an owner, officer, director, manager or supervisor.

Employers with 50 or more employees have an obligation to provide sexual harassment training to supervisors every two years. They also have an obligation to post, in a conspicuous place, notice of employees’ rights under FEHA. Their failure to do so may make them liable for subsequent harassment.

The remedies for unlawful harassment and retaliation include both economic and non-economic damages. Economic damages cover financial losses such as loss of income, benefits, stock options, medical care, etc. Non-economic damages cover harms and losses to an individual’s person and well-being such as the fear, anxiety, humiliation, grief, emotional distress and vulnerability associated with the harassment and your sudden loss of income. Punitive damages may also be assessed against the company if the conduct was committed by an officer, director or high-level manager. These are damages which are assessed against an individual or company to, in addition of making the employee “whole” with compensation for economic and non-economic damages, punish companies where appropriate.

Mediation is a non-binding process that utilizes a neutral third party to review each side’s facts and claims and then try and mediate the dispute, i.e., help each side to see the strengths and weaknesses of their claims and try and reach a mutually agreeable resolution. Arbitration is where, instead of a right to a jury trial, the matter is heard and decided in private. If your employment agreement, calls for mediation or arbitration of disputes before filing a lawsuit, you may have to exhaust those remedies before pursuing other avenues such as a lawsuit or you may be prohibited from doing so. If mediation and/or arbitration is not required, you may proceed to fill a claim with the DFEH and either have them conduct an investigation, or issue a “right to sue” letter and proceed in civil court.

Christopher B. Dolan is the owner of the Dolan Law Firm. Email Chris questions and topics for future articles

We serve clients across the San Francisco Bay Area and California from our offices in San Francisco, Oakland, and Los Angeles. Our work is no recovery, no free or also referred to as contingency-based. That means we collect no fee unless we obtain money for your damages and injuries. 

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