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What is sexual harassment?

There are many ways to define sexual harassment. Generally it includes any type of unwelcome sexual advance, requests for sexual favors, and/or other verbal or physical conduct of a sexual nature. When such conduct unreasonably affects an individual's employment and/or unreasonably interferes with an individual's work performance, or creates an intimidating, hostile, or offensive work environment, it is generally considered sexual harassment and is legally actionable.

Does the victim have to be a woman?

No. The victim may be either a woman or a man, and the victim and harasser do not have to be of opposite sexes. In 2007, the EEOC received move than 12,000 sexual harassment complaints, and over 15 percent of them were filed by male employees. The harasser can be the victim's manager, supervisor, employer, supervisor or even a non employee.

Is witnessing harassment considered a form of harassment?

Yes. The victim does not have to be the person harassed but could be anyone affected by the harassment. Unlawful sexual harassment may occur without the victim suffering monetary injury. The key is that the harasser's conduct must be unwelcome by the victim.

If I witness harassment, should I report the harasser to my employer?

Yes. You should also inform the harasser directly that the conduct is not welcomed and must stop. The next step is to immediately contact management and report the incident. The victim should use the employer complaint and grievance system and make sure that the company's rules in this regard are followed to the letter. This will become important if there is litigation, since the defense will try to claim that the victim did not provide adequate notice to management and did not follow company protocol in reporting the harassment.

Will the government investigate?

The government will investigate when requested to by the employee and upon the filing of a complaint or allegation to the appropriate governmental body. Moreover, should the victim subsequently bring a sexual harassment lawsuit against the employer, the victim must have first reported the incident to the EEOC or to the appropriate state agency in charge of enforcing the state employment laws. When investigating sexual harassment allegations the agency will look at the circumstances, such as the actual type of sexual advances and the context in which the alleged incidents occurred. A determination on the allegations is made from the facts on a case-by-case basis.

What if my employer fires me for reporting it to the DFEH?

It is unlawful for an employer to retaliate against an individual for opposing employment practices that discriminate based on sex or for filing a discrimination charge, testifying, or participating in any way in any investigation, proceeding, or litigation. The employer who retaliates is subject to serious fines, penalties, and substantial damage claims by the victim, including punitive damages.

Hostile Work Environment Harassment

California law strictly forbids hostile work environments. How is hostile work environment determined? It is often found when the management of a company allows or promotes an abusive or offensive environment to dominate the workplace. The courts look at a number of factors in determining whether such an environment exists. The courts determine how pervasive the abuse is and whether the sexually charged conduct was verbal, physical, or both; the frequency of the offensive conduct; whether the alleged harasser was a coworker or part of the management team; whether the conduct was an isolated occurrence or whether it happened regularly; whether the complaining party participated in the exchange; and the nature of the relationship between the complaining party and the alleged harasser.

How do you prove sexual harassment?

Every state has its own employment laws - including those prohibiting sexual harassment. To bring an action for sexual harassment, you must usually establish that you found conduct to be hostile, abusive or offensive?and that a reasonable person in your position would also consider the conduct hostile, abusive or offensive. You do not necessarily have to be the victim of the harassment in order to file a complaint about workplace sexual harassment.

Ordinarily before you can file a suit based on sexual harassment, you must file a complaint about the conduct with an administrative agency. For a federal complaint, you would file the complaint with the Equal Employment Opportunity Commission (EEOC). There are also state and local agencies to which complaints may be made. Sometimes one of these agencies will take your case and prosecute your discrimination on your behalf. If the agency does not act promptly or declines to act on your behalf, you may file a private lawsuit.

If you feel that you are the subject of sexual harassment, you should inform the harasser that the conduct is unwelcome and must stop, either through words or through conduct that demonstrates that the harassment is unwelcome. This is necessary to ensure that the harasser does not mistakenly believe that you welcome the conduct. You should also use any complaint mechanism or grievance system available from your employer.

If these methods are ineffective, you should contact the EEOC or a similar state agency. You may benefit from consulting an attorney before contacting a government agency about the harassment.

Typically, in defending against a sexual harassment charge, an employer will attempt to establish that it took reasonable measures to prevent and correct any sexual harassment behavior within the workplace and that you failed to take advantage of preventive or corrective opportunities that the employer provided.

Title VII also protects employees who file sexual harassment charges, who participate in an investigation or litigation associated with a sexual harassment complaint, or who testify in related proceedings. State laws typically have similar provisions. It is possible for you to lose a sexual harassment claim but still win a judgment against an employer on the basis of retaliation.