Harassment on any of the bases enumerated in the Fair Employment and Housing Act (FEHA), is a form of employment discrimination, and it is illegal. If you have been injured by harassment, economically or emotionally, you may be able to recover for your damages. The law prohibiting harassment in California covers all employers that have at least one employee.
One of the most common types of harassment is sexual harassment. Below are frequently asked questions about sexual harassment specifically and harassment in general, as well as questions regarding the process for obtaining relief if you have been a victim of any kind of unlawful harassment.
- What is sexual harassment?
- What is a hostile work environment?
- Who can be liable for harassment?
- What remedies are available if I can prove I was harassed?
- If I think I am being harassed on a protected basis, what can I do?
- Do I need to do anything before filing a lawsuit in court?
- Are there any deadlines for filing a complaint alleging harassment?
- If I already left my job, can I still take action against my former employer for harassment?
What is sexual harassment?
There are two basic types of sexual harassment. One is referred to as “quid pro quo” harassment. Quid pro quo harassment usually occurs when a supervisor demands sexual favors in return for a job benefit, like getting a raise, promotion, better office. A variation of “quid pro quo” harassment may occur when your employer gives preferential treatment to an employee who accedes to a demand for sexual favors to the detriment of other employees who do not. The other type of sexual harassment is referred to as “hostile work environment” harassment. A hostile environment may occur when supervisors or other employees make unwanted sexual advances, make sexually-suggestive comments or gestures, or bring sexually explicit material into the workplace. The environment must be so affected that it changes the conditions of employment or makes it impossible for you to tolerate being at work.
What is a hostile work environment?
Harassment on other bases, not just sex, often is of the “hostile work environment” variety. To be legally actionable, comments or actions must be either “severe or pervasive.” A stray remark or single incident usually will not constitute harassment unless it poisons your work environment or is particularly egregious. For example, if your co-workers constantly make racist or homophobic comments, you’ve complained to your supervisor but the comments continue, that would almost certainly constitute an unlawful, hostile work environment. To establish harassment on any protected basis, you don’t have to have any “loss of tangible job benefits,” such as the loss of your job or a demotion.
Who can be liable for harassment?
Unlike other kinds of discrimination, if you prove you have been harassed and injured as a result of it, you may sue individual supervisors who may be held personally liable for any harassment involving them. The company or entity will also be held liable for the unlawful actions of its agents or supervisors. In addition, if the employer knew or should have known of the conduct and failed to take immediate and corrective action, the employer can be liable for harassment perpetrated by other employees. In the case of sexual harassment, employers may even be liable for harassing behavior by non-employees.
What remedies are available if I can prove I was harassed?
The most common remedies for harassment are damages for the emotional distress you suffered due to the harassment, reinstatement if you were fired from your position because you rejected an employer’s sexual advances, punitive damages for especially egregious misconduct, and recovery of any attorneys’ fees you had to incur to obtain relief.
If I think I am being harassed on a protected basis, what can I do?
First, make it absolutely clear to the harasser that his or her conduct is unwanted, not-consensual, and offensive. If that doesn’t put a stop to the harassment, then you need to make sure your employer knows or should have known about the harassment by complaining to your employer’s management, administration, or human resources department. Many employers have a policy in place for making complaints. If you have an employee handbook, it may include a specific procedure. If managers are directly involved in the harassing behavior, you should make a complaint to their superiors, or if they have no superiors, then you may need to take immediate legal action. If you have complained about the harassing conduct and it hasn’t stopped, we suggest that you call us to discuss your situation and determine the best course of action.
Do I need to do anything before filing a lawsuit in court?
Yes. Before going to court on a claim alleging harassment, the law requires that you first file an administrative complaint with the California Department of Fair Employment and Housing (DFEH) or the federal Equal Employment Opportunity Commission (EEOC). If you are alleging harassment on a protected basis that is unlawful under both the state and federal laws, you usually do not need to file with both agencies because a complaint filed with one is cross-filed with the other. But harassment on the basis of sexual orientation, for example, is not covered by the federal law, so you must file with DFEH. Under state law, you have one year from the date you receive a Right-to-Sue Notice from DFEH to file a lawsuit in court.
Are there any deadlines for filing a complaint alleging harassment?
As with all legal claims, a statute of limitations applies. For claims of harassment, and discrimination in general, you must file with DFEH within one year of the date the harassment occurred. For example, if you refused to have sex with a supervisor, the deadline would run from the date the demand was made. Sometimes, it isn’t clear when harassment begins or ends, especially if the harassment is continuing and creates a hostile work environment. If even one incident among a series of discriminatory acts occurred during the limitations period, you may be able to recover for the earlier acts because the employer’s conduct is considered a “continuing violation.” We urge you to call right away to determine whether your claim falls within the limitations period.
If I already left my job, can I still take action against my former employer for harassment?
It depends on whether the statute of limitations has run, as explained above. Assuming that your claim isn’t barred by the statute of limitations, the fact that you quit your job will not prevent you from taking legal action against your employer. When an employee quits a job because the harassment became intolerable, it usually is not considered a “voluntary resignation. Instead, it likely would be considered a “constructive discharge,” for which relief can be sought.