The CA department of fair housing and employment regulates the definition of sexual harassment and the damages awarded for emotional distress.
All employers are prohibited from harassing their employees including through physical, verbal and visual conduct. Exposure to various kinds of behavior or to unwanted sexual advances alone may constitute harassment. http://www.dfeh.ca.gov/Publications_StatLaws_SexHarrass.htm
Fair Employment and Housing – Sexual Harassment
Definition of Sexual Harassment
The Fair Employment and Housing Act defines harassment because of sex as including sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions.
The Fair Employment and Housing Commission regulations define sexual harassment as unwanted sexual advances, or visual, verbal or physical conduct of a sexual nature. This definition includes many forms of offensive behavior and includes gender-based harassment of a person of the same sex as the harasser. The following is a partial list of violations:
- Unwanted sexual advances
- Offering employment benefits in exchange for sexual favors
- Making or threatening reprisals after a negative response to sexual advances
- Visual conduct: leering, making sexual gestures, displaying of suggestive objects or pictures, cartoon or posters
- Verbal conduct: making or using derogatory comments, epithets, slurs, and jokes
- Verbal sexual advances or propositions
- Verbal abuse of a sexual nature, graphic verbal commentaries about an individual’s body, sexually degrading words used to describe an individual, suggestive or obscene letters, notes or invitations
- Physical conduct: touching, assault, impeding or blocking movements
All employers are prohibited from harassing employees in the workplace. If harassment occurs, an employer may be liable even if management was not aware of the harassment. An employer might avoid liability if the harasser is a non-management employee, the employer had no knowledge of the harassment, and there was a program to prevent harassment. If the harasser is a non-management employee, the employer may avoid liability if the employer takes immediate and appropriate corrective action to stop the harassment once the employer learns about it. Employers are strictly liable for harassment by their supervisors or agents. The harasser can be held personally liable for damages. Additionally, Government Code section 12940, subdivision (k), requires an entity to take “all reasonable steps to prevent harassment from occurring.” If an employer has failed to take such preventative measures, that employer can be held liable for the harassment. A victim may be entitled to monetary damages even though no employment opportunity has been denied and there is no actual loss of pay or benefits.
All employers have a legal obligation to prevent sexual harassment.
- Employers must take all reasonable steps to prevent discrimination and harassment from occurring.
- Employers must help ensure a workplace free from sexual harassment by posting in the workplace a poster made available by the Department of Fair Employment and Housing.
- Employers must help ensure a workplace free from sexual harassment by distributing to employees information on sexual harassment. An employer may either distribute a brochure that may be obtained from the Department of Fair Employment and Housing or develop an equivalent document, which must meet the following requirements:
- The illegality of sexual harassment
- The definition of sexual harassment under state and federal laws
- A description of sexual harassment, utilizing examples
- The internal complaint process of the employer available to the employee
- The legal remedies and complaint process available through the Department and the Fair Employment and Housing Commission
- Directions on how to contact the Department and the Fair Employment and Housing Commission
- The protection against retaliation for opposing the practices prohibited by law or for filing a complaint with, or otherwise participating in investigative activities conducted by, the Department or the Commission
- # Employers with 50 or more employees must provide at least two hours of classroom or other effective interactive training and education regarding sexual harassment to all supervisory employees who are employed as of July 1, 2005, and to all new supervisory employees within six months of assuming a supervisory position. There after, covered employers must provide sexual harassment training and education to each supervisory employee once every two years.
Enforcement of the Law
Employees or job applicants who believe that they have been sexually harassed may, within one year of the harassment, file a complaint of discrimination with the California Department of Fair Employment and Housing. The Department will investigate the complaint and attempt to resolve the disputes. If the Department finds evidence of sexual harassment and settlement efforts fail, the Department may file a formal accusation against the employer and the harasser. The accusation may lead to either a public hearing before the Fair Employment and Housing Commission or a lawsuit filed on the complainant’s behalf by the Department. If the Commission finds that harassment occurred, it can order remedies, including up to $150,000 in fines and/or damages for emotional distress from each employer or harasser charged. In addition, the Commission may order hiring or reinstatement, back pay, promotion, training, and changes in the policies or practices of the involved employer. A court may order unlimited damages.
Preventing Sexual Harassment
A program to eliminate sexual harassment from the workplace is not only required by law, but it is the most practical way to avoid or limit damages if harassment should occur despite preventative efforts.
An employer should take immediate and appropriate action when he/she knows or should have known that sexual harassment has occurred. An employer must take effective action to stop any further harassment and to minimize any effects of the harassment. To those ends, the employer’s policy should include provisions to:
- Fully inform complainant of his/her rights
- Fully and effectively investigate. The investigation must be immediate, thorough, objective and complete. Anyone with information on the matter should be interviewed. A determination must be made and the results communicated to the complainant, to the alleged harasser, and, as appropriate, to all others directly concerned.
- If harassment is proven, there must be prompt and effective remedial action. First, appropriate action must be taken against the harasser and communicated to the complainant. Second, steps must be taken to prevent further harassment. Third, appropriate action must be taken to remedy the complainant’s loss, if any.
TRAINING OF ALL INDIVIDUALS IN THE WORKPLACE
All employees must receive from their employers a copy of the DFEH pamphlet “Sexual Harassment is Forbidden by Law” (DFEH-185) or an equivalent document.
All employees should be made aware of the seriousness of violations of the sexual harassment policy. Supervisory personnel should be educated about their specific responsibilities. Rank and file employees should be cautioned against using peer pressure to discourage harassment victims from using the internal grievance procedure.
Employers with 50 or more employees must provide at least two hours of classroom or other effective interactive training and education regarding sexual harassment to all supervisory employees who are employed as of July 1, 2005, and to all new supervisory employees within six months of assuming a supervisory position. There after, covered employers must provide sexual harassment training and education to each supervisory employee once every two years.
For more information, call the appropriate telephone number found by viewing the DFEH Contact Information.
Typical Sexual Harassment Cases
The three most common types of sexual harassment complaints filed with the Department are:
- An employee is fired or denied a job or an employment benefit because he/she refused to grant sexual favors or because he/she complained about harassment. Retaliation for complaining about harassment is illegal, even if it cannot be demonstrated that the harassment actually occurred.
- An employee quits because he/she can no longer tolerate an offensive work environment, referred to as a “constructive discharge” harassment case. If it is proven that a reasonable person, under like conditions, would resign to escape the harassment, the employer may be held responsible for the resignation as if the employee had been discharged.
- An employee is exposed to an offensive work environment. Exposure to various kinds of behavior or to unwanted sexual advances alone may constitute harassment.
The state also defines a hostile work environment which may include sexual harassment and other verbal, physical and visual cues and conduct.
Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.) is the federal law applicable to most cases of employment discrimination. Title VII outlaws employment discrimination based on race, color, religion, sex or national origin. (42 U.S.C. § 2000e-2.)(2) Title VII applies to employers with 15 or more employees. (42 U.S.C. § 2000e.)(3) Employers who receive federal funds are also prohibited from discriminating on the basis of physical and mental disability. (Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794.) Disabled employees are also protected by the Americans with Disabilities Act (ADA); 42 U.S.C. § 12111 et seq.,(4) and employees with substance abuse problems are protected by the Alcohol and Drug Rehabilitation Act (ADRA, Lab. Code §§ 1025). The federal Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., prohibits age discrimination against those over 40 years of age.(5)
The Fair Employment and Housing Act (FEHA, Gov. Code, §§ 12900 et seq.) is the California law that deals most directly with employment discrimination.
The FEHA is broader in scope than Title VII. The FEHA prohibits discrimination in employment based on race, religious creed, color, national origin, ancestry, physical or mental disability, medical condition (controlled cancer), marital status, sex or age (over 40)(6) (Gov. Code, §§ 12940-12941.)(7) The FEHA generally covers employers with five or more employees, whether employed full-time or part-time.(8) (Robinson v. Fair Employment & Housing Com. (1992) 2 Cal.4th 226.) However, it prohibits harassment by any employer with one or more employees. (Gov. Code, § 12940(h)(3)(A); religious associations or corporations not organized for private profit are not considered to be employers, according to Government Code section 12926(d)(1).)
You, as an employee or job applicant, but not as an independent contractor, have an absolute right to be free from sexual harassment related to your employment. (42 U.S.C. § 2000e-2; Gov. Code, § 12940 (h).).) Sexual harassment includes, but is not limited to, verbal harassment, physical harassment, visual forms of harassment, and sexual favors. (Cal. Code Regs, tit. 2 § 7287.6(b)(1).) It must be severe or pervasive enough that it adversely affects the victim’s work environment. (Meritor Savings Bank v. Vinson (1986) 477 U.S. 57, 64-67; Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 608-609.)
In determining whether the harassment is sufficiently severe or pervasive to be actionable, California appellate courts judge it on a case-by-case basis, based on the reasonable person of the same gender standard. (Fisher v. San Pedro Peninsula Hospital, supra, 214 Cal.App.3d 590, 609, n. 7.) At the federal level, the Ninth Circuit has adopted a gender specific standard. (Ellison v. Brady (9th Cir. 1991) 924 F.2d 872, 878-888.) In Harris v. Forklift Systems, Inc. (1993) 510 U.S. 17, 21, the Supreme Court used the term “reasonable person” in its discussion, but did not approve or disapprove the use of a gender-specific standard. In a post-Harris decision, the Ninth Circuit formulated a “reasonable person with the same fundamental characteristics” standard. (Fuller v. City of Oakland (9th Cir. 1995) 47 F.3d 1522, 1527.) The FEHC, which enforces the FEHA, has not adopted a gender-specific standard in a precedential decision.
Sexual harassment does not have to be outright or obvious to be illegal. Nor does the conduct have to result in the loss of some tangible employment benefit to be actionable. (Peralta Community College Dist. v. Fair Employment & Housing Com. (1990) 52 Cal.3d 40, 52.) Conduct that implies sexual demands are being made, such as verbal, symbolic or pictorial gestures that make work difficult for you, is illegal. (Cal. Code Regs., tit. 2, § 7287.6.) California law prohibiting sexual harassment in the workplace applies to all employers in California, except for religious nonprofit organizations,(13) regardless of how few or how many people they employ. (Gov. Code, § 12940(h).)(14)
It is illegal for an employer to base employment decisions, such as hiring, firing or promotion, on whether or not you submit to sexual demands. (29 C.F.R. § 1604.11; Gov. Code, § 12940(h); Cal. Code Regs., tit. 2, § 7287.6(b)(1)(D).)
Sexual harassment that creates a hostile or offensive work environment for members of one sex is also unlawful. (Gov. Code, § 12940(h);) Cal. Code Regs., tit. 2, §§ 7287.6(b)(1) and 7291.1(f)(1); 29 C.F.R. § 1604.11(a)(3).)
It is not necessary that the plaintiff show that he/she has suffered actual psychological injury. (Harris v. Forklift Systems, Inc., supra, 510 U.S. 17, 22.) A plaintiff may be able to establish a “hostile work environment” under the FEHA, even if he/she was not personally the target of the harassing conduct, if her/she personally witnessed it in his/her immediate work environment. (Fisher v. San Pedro Peninsula Hospital, supra, 214 Cal.App.3d 590, 611.) The creation of a hostile work environment does not have to involve sexual advances, as long as gender is a substantial factor in the discrimination and if the plaintiff had been a man, he would not have been treated in the same manner. (Accardi v. Superior Court (1993) 17 Cal.App.4th 341, 348.)
Rights of free speech of other employees must be accommodated. (Cal. Code Regs., tit. 2, § 7287.6(b)(1)(E).) Thus, a male employee may be free to quietly possess, read and share Playboy magazine at work. (Johnson v. County of Los Angeles Fire Dept. (C.D. Cal. 1994) 865 F. Supp. 1430, 1442.) The California Supreme Court has before it a case in which it will address the question whether verbal harassment of an employee by a supervisor at work (in that case racial epithets) can be enjoined by a court without violating the free speech rights of the supervisor. (Aguilar v. Avis Rent A Car System , Case No. S054561, review granted September 4, 1996.)
Harassment because of sex includes sexual harassment, gender harassment, harassment based on pregnancy, childbirth or related medical conditions and same- sex harassment. (Gov. Code, § 12940(h)(3)(C); Mogilefsky v. Superior Court of Los Angeles County (1993) 20 Cal.App.4th 1409.) The United States Supreme Court recently decided that same-sex harassment could violate Title VII. (Oncale v. Sundowner Offshore Services, Inc. (1998) ___ U.S. ___, 98 Daily Journal D.A.R. 2100.)
Employers may be held responsible for acts of their employees. Employers’ liability for employees is different under state and federal law. Specific law should be consulted, but an employer is strictly liable under state law for harassment by supervisors,(15) even if the employer did not know about the harassment. (Gov. Code, § 12940(h)(1); Cal. Code Regs., tit. 2, § 7287.6(b)(2); 29 C.F.R. § 1604.11(c); Kelly-Zurian v. Wohl Shoe Company (1994) 22 Cal.App.4th 397, 415.)(16) Under Title VII, employers are liable for supervisor sexual harassment in quid pro quo situations, where the victim’s submission to sexual advances or conduct is made a condition of an employment benefit. (Nichols v. Frank (9th Cir. 1994) 42 F.3d 503, 513-514.) However, the United State Supreme Court has, to date, declined to issue a definitive rule on employer liability for supervisor harassment in pure hostile work environment cases. (Meritor Savings Bank v. Vinson, supra, 477 U.S. 57, 69-73.)
An employer may not be liable for sexual harassment by a supervisory employee if the employee is found to have been off-duty and away from the workplace when he/she committed the harassment. (Capitol City Foods, Inc. v. Superior Court of Sacramento (1992) 5 Cal.App.4th 1042; however, see Doe v. Capital Cities (1996) 50 (Cal.App.4th 1028, where the court found complainant did adequately plead a cause of action for sexual harassment against ABC for rape of an actor by a casting director on a Sunday at the cast director’s home, because the reason the complainant was at the director’s home was sufficiently work-related.)
Employers may be responsible for sexual harassment by co-workers and non-employees, where the employer knew or should have known of the conduct and failed to take immediate and appropriate action. (29 C.F.R. § 1604.11(d) and (e); Gov. Code, § 12940(h)(1); Cal. Code Regs., tit. 2, § 7287.6(b)(3).) Additionally, supervisors may be individually liable for personally engaging in harassment under state law (Page v. Superior Court (1995) 31 Cal.App.4th 1206, 1210-1217), or if they substantially assist or encourage continued harassment (Matthews v. Superior Court of Los Angeles County (1995) 34 Cal.App.4th 598, 603-606, (17) although not under Title VII.(18) (Miller v. Maxwell’s International, Inc. (1993) 991 F.2d 583, 587-588.)
Unlike Title VII, the FEHA also imposes an independent affirmative duty on employers and other covered entities to “take all reasonable steps necessary to prevent discrimination and harassment from occurring.” (Gov. Code, § 12940(i); Flait v. North American Watch Corporation (1992) 3 Cal.App.4th 467, 476, (employee, as harassed employee’s supervisor, had statutory duty to take immediate action to end sexual harassment).) Employers are required to post the current Department of Fair Employment and Housing (DFEH) anti-discrimination poster, and the DFEH information sheet on sexual harassment, or its equivalent. (Gov. Code, § 12950.) The Ninth Circuit Court of Appeal has interpreted Title VII to require employers, when faced with charges of sexual harassment among their employees, to do more than merely investigate, even if the harassment has ended by the time they learn of it. (Fuller v. City of Oakland, supra, 47 F.3d 1522, 1528-1529.)
If you file a harassment charge, the scope of permissible questions about prior sexual history with persons other than the alleged harasser is limited in federal and state court and administrative proceedings. (Cf. Jenson v. Eveleth Taconite Co. (8th Cir. 1997) 130 F.3d 1287, 1294-1295); Priest v. Rotary (N.D. Cal. 1983) 98 F.R.D. 755; Vinson v. Superior Court of Alameda County (1987) 43 Cal.3d 833, 844; Evid. Code, §§ 783 and 1106; Code of Civ. Proc., § 2017(d) and Gov. Code, §§ 11507.6(g) and 11513(c) and (o).)
A Court of Appeal has held that a claim for emotional distress arising out of sexual harassment is not preempted by the Workers’ Compensation Act. (Accardi v. Superior Court, supra, 17 Cal.App.4th 341, 353.)
If you quit your job as a result of sexual harassment or sexual discrimination by your employer, you may be eligible for unemployment insurance benefits. However, you must meet all eligibility requirements under the Unemployment Insurance Code, as well as have taken reasonable steps to preserve your employment. (Unemp. Ins. Code, §§ 1256.2 and 1256.7.)