Sexual Harassment

Sexual harassment is unwanted or unwelcome sexual advances, requests for sexual favors, or visual, verbal, or physical conduct of a sexual nature when: submission to such conduct is made a term or condition of employment; or submission to or rejection of such conduct is used as a basis for employment decisions affecting the individual; or such conduct has the purpose or effect of unreasonably interfering with an employee's work performance or creating an intimidating, hostile, or offensive working environment.  For hostile work environment, an employee must be able to prove a pattern of sexual harassment.  A single incident is insufficient to support liability unless it is severe.

Sexual harassment is prohibited by both Title VII of the Civil Rights Act of 1964 and California's Fair Employment and Housing Act.  California takes this matter so seriously than in 2004 it passed a new law, AB 1825, which requires all employers with fifty (50) or more employees or independent contractors to provide all supervisory employees with a mandatory minimum of two (2) hours of sexual harassment training every two years within six (6) months of starting a supervisory position.

Sexual harassment is one of the most pervasive problems in the workplace today.  It happens to both men and women.  The victim as well as the harasser can be either sex, and the victim and harasser can be of the same sex.  The harasser can be the victim's supervisor, an agent of the employer, a supervisor in another area, a co-worker, or even a someone who is not an employee of the victim's employer. 

Employers may be held liable for sexual harassment even if they did not know it was happening.  Employers may be able to limit damages for sexual harassment under the "avoidable consequences" where the employer has taken all reasonable steps to prevent and correct workplace harassment.  Sexual Harassment training is just one "reasonable step" employers can take to minimize liability.  Another step is to implement a sexual harassment policy prohibiting such conduct, and a procedure for employees to complain about this kind of behavior and for the employer to promptly investigate such complaints and take appropriate, corrective action.

Increasingly, courts have ruled against employees who have not taken advantage of such grievance procedures, unless filing such a complaint would be futile.  Both employers and employees who have questions about sexual harassment should seek the advice of an attorney.

© Alexandra M. Steinberg 2016 All rights reserved.