Despite the #MeToo movement’s ubiquity and success, sexual harassment remains a problem thousands of California employees must endure.  Nevertheless, everyone has the right to work free from sexual harassment.  If you are or have suffered sexual harassment, contact Astanehe Law for your free consultation today.  You have rights, and Astanehe Law can help you stop workplace harassment.

What is Sexual Harassment?

Sexual harassment relates to unwelcome or inappropriate sexual conduct. Sexual harassment can consist of verbal, physical, or visual acts of a sexual nature.  This includes requesting sexual favors, making lascivious comments, or repeatedly asking an employee out to lunch for pleasure.  Although undoubtedly prevalent, the conduct need not consist of lewd acts, double entendres, or sexual advances. Subtle sexual misconduct, such as harassing someone based on their gender can also constitute sexual harassment.

What are the Types of Sexual Harassment?

Sexual harassment can take two forms:

  1. Quid pro quo; or,
  2. Hostile Environment.

1. Quid Pro Quo Sexual Harassment 

Quid Pro Quo sexual harassment occurs where an employer or its manager or supervisor conditions a job benefit to sexual conduct, such as securing a raise or promotion in exchange for sexual favors.  This type of sexual harassment typically occurs where the person committing sexual misconduct is the victim’s immediate supervisor or holds a higher position.

2. Hostile Environment Sexual Harassment

Hostile Environment sexual harassment occurs where sexual misconduct has the purpose or effect of interfering with an employee’s work performance or creating an intimidating, hostile, or offensive working environment. This type of sexual harassment must be so severe and pervasive as to alter employment conditions and create an abusive working environment.

These distinctions aside, the sexual harassment must result in an adverse action, such as the loss of a job or promotion or reassignment, to find the employer liable for a manager or supervisor’s actions.

What Must an Employee Prove for a Quid Pro Quo Sexual Harassment Claim?

To successfully assert a quid pro quid sexual harassment claim against an employer, the employee must prove that:

  1. The employer, supervisor, or manager subjected the employee to unwelcome sexual advances, conduct, or comments;
  2. The harassment was based upon sex; and,
  3. The employee’s reaction to harassment affected tangible employment aspects such as compensation, terms, conditions, or privileges.

The quid pro quo sexual harassment does not have to be ongoing or pervasive.  A single instance of unwelcome sexual conduct is enough to establish a quid pro quo sexual harassment claim where the conduct is linked to an adverse employment action, such as the granting or denial of employment or job benefits.

What Must an Employee Prove for a Hostile Environment Sexual Harassment Claim?

To successfully assert a hostile environment sexual harassment claim against an employer, the employee must prove that:

  1. The employee was subjected to unwelcome sexual advances, conduct, or comments;
  2. The harassment complained of was based on sex; and,
  3. The harassment was severe or pervasive as to alter the conditions of the employment and create an abusive working environment.

Unlike quid pro quo sexual harassment, hostile environment sexual harassment does not require an adverse employment action.  Instead, hostile environment sexual harassment – which is concerned with the degree of sexual harassment – requires the employee to show pervasive and destructive sexual misconduct.

Hostile environment sexual harassment is not limited to managers and supervisors, coworkers, and even nonemployees, such as customers, can trigger hostile environment sexual harassment liability.  The employee has a claim where the employer is aware of sexual misconduct and fails to respond appropriately.

Constructive Discharge: When the Sexual Harassment Becomes Too Much

One type of adverse employment action is a constructive discharge, which occurs when an employee leaves employment due to ongoing and unaddressed sexual harassment.  To prevail, the employee must prove that intolerable abusive working conditions exist – which made resignation reasonable.  Employees are usually justified in resigning when a significant adverse employment action such as a humiliating demotion, or a substantial pay cut accompanies sexual harassment.

When Does Sexual Harassment Typically Occur?

Sexual harassment can occur during any phase of employment, including:

  • During the hiring process;
  • Determining compensation or compensation increases;
  • Determining workplace conditions and rules;
  • While working with colleagues; or,
  • Allowing sexual harassment to persist.

Upon becoming aware of sexual harassment, employers must take all reasonable steps necessary to prevent sexual harassment.

Who is Liable for Sexual Harassment?

Under California law, both the employer and employee-harasser are liable to you for harassment.  If you are experiencing sexual harassment, your employer may be held strictly liable for allowing a hostile work environment.

Sexual Harassment Damages

Damages for employees who suffer sexual harassment commonly include awards of back pay, front pay, medical costs, fringe benefits or employment perks, and injunctive relief.  Where the sexual harassment is so offensive and severe, the employee can recover punitive damages.

Back pay is the difference between the compensation an employee would have earned in a job the employee was denied and the amount that the employee earned, or could have earned in the same area.  Back play reflects total earnings and includes possible pay raises and promotions.

Front pay reflects the future earnings expectancy that has been lost or diminished.

Fringe benefits or employment perks are non-wage or salary compensation such as stock options, meal and travel allowances, and savings or retirement plan contributions.  To collect lost or denied fringe benefits, an employee must establish: (1) These benefits would have been received and are not speculative; and, (2) Their loss flows naturally from the wrongful termination. Panhandle Eastern Pipe Line Co. v. Smith, 647 P. 2d 1020 (Wyo. 1981).

Punitive damages are awarded to punish the employer and harassing-employer.  Here, the sexual harassment must be particularly malicious, such as sexual harassment with attendant violent acts.

Employees can also recover out-of-pocket costs associated with sexual harassment.

No Upfront Costs for Sexual Harassment Lawsuit

You will not owe Astanehe Law a penny until after you obtain a successful settlement or judgment.  Astanehe Law offers contingency representation, which means there is no upfront cost in securing legal representation.

Astanehe Law Knows Workplace Sexual Harassment

Michael M. Astanehe possesses a zeal for helping employees bring claims against their employers.  Mr. Astanehe is an aggressive litigator with several years of civil litigation experience.  He is willing to take your case to trial, if necessary.  This ferocity ensures that Astanehe Law will obtain the highest recovery possible for each client.

Litigation is stressful.  To that end, Mr. Astanehe provides each client with comprehensive legal service so that they remain fully-informed and comfortable throughout the process.  Astanehe Law strives to make litigation as stress-free as possible.

With Astanehe Law on your side, you are poised to obtain the maximum recovery possible.  Contact us today for your free consultation!