As a young female attorney who has been in my fair share of uncomfortable situations in the work place, being advocate for women and any other protected class is a passion of mine.

 

 “Do I have a case?” is a question I hear often, so this blog hopefully provides an introduction to the elements required for a sexual harassment case under California Law. Please know, every case is different and the individual facts of your case should be evaluated by an attorney. If you live in San Diego or you want to take a trip to visit us at DuFord law, I would be more than happy to sit down and talk to you about the particular circumstances of your case.  Also, note that depending on the type of company you work for some of these laws may apply to your company and others may not. It often depends on the number of employees at your company. However, California law has some of the most broadly applicable employment law doctrines in the country.

 

Under California law, the elements of a prima facie claim of hostile-environment through sexual harassment are: (1) plaintiff belongs to a protected group; (2) plaintiff was subject to unwelcome sexual harassment; (3) the harassment complained of was based on sex; (4) the harassment complained of was sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment; and (5) respondeat superior (meaning your employer has liability placed upon them for the actions of an employee through a particular legal doctrine). [1] Again,  respondeat superior may or may not apply to your case.

 

 Under Calfornia’s Fair Employment and Housing Act (FEHA), an employee who harasses another employee may be held personally liable and an employer is strictly liable for all acts of sexual harassment by a supervisor.[2]  This means that if an employee is your equal and they sexually harass you, they may be sued personally for acts against you.  However, if the employee is your supervisor or superior, the employer can be held strictly liable. Strict liability is the imposition of responsibility on a party without a finding of fault (such as negligence or tortious intent). The claimant need only prove that the  sexual harassment occurred and that the employer was responsible.

 

In 1980, the federal Equal Employment Opportunity Commission (EEOC) issued guidelines stating that “sexual harassment” is a form of sex discrimination prohibited by Title VII. The guidelines explained that sexual harassment could take the form of either: an economic “quid pro quo,” where an employee’s subjection to sexual conduct is linked to the grant or denial of job benefits, such as getting or retaining a job, or receiving a favorable performance review or promotion; or creating a “hostile environment,” where the sexual conduct had the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile or offensive working environment.[3] California courts have adopted the same distinction for harassment claims under FEHA although quid pro quo harassment is treated as a type of FEHA harassment.[4]

 

            So, sexual harassment does not necessary mean that you were denied promotions at work, raises or it may have affected your career in an adverse way.  If the harassment rises to the level of creating a hostile work environment that can be enough for a successful sexual harassment case. Additionally, if you make a complaint to Human Resources and the complaint is not handled or not handled in a proper manner, the damages to your employer can increase exponentially.

 

             Obviously, I cannot cover the entire doctrine or legal history of sexual harassment in one blog post. However, I hope this provides you with a basic understanding of whether or not it is worth reaching out to an attorney for your case. Most of the time, attorneys will take sexual harassment cases on a contingency fee basis, meaning that they take their fees from the settlement or jury award, not upfront. This often makes it easier for Plaintiffs to bring cases. If you think you have been sexually harassed at work you should absolutely sit down with attorney to discuss the matter.

 

[1] Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590

[2] State Dep’t of Health Servs. v. Superior Court (2003) 31 Cal.4th 1026; Lewis v. City of Benicia (2014) 224 Cal.App.4th 1519.

[3] See Meritor Sav. Bank, FSB v. Vinson (1986) 477 US 57.

[4] Id.; See Fisher v. San Pedro Peninsula Hosp. (1989) 214 CA3d 590; Beyda v. City of Los Angeles (1998) 65 CA4th 511);  Roby v. McKesson Corp. (2009) 47 C4th 686.