The tremors can be felt throughout California. And I am not referring to an earthquake. Consider the allegations throughout 2017 of sexual harassment that de-throned entertainment industry kingpins such as Harvey Weinstein and Kevin Spacey as well as Silicon Valley bosses such as Uber’s Chief Executive Officer Travis Kalanick. The reported allegations of sexual harassment appear in newspaper editorials, newspaper articles, and press conferences as well as Twitter, Facebook and other social media.
Employees in workforces all throughout California and across the country are becoming increasingly aware that sexual harassment in the workplace is unlawful. But what does it mean to actually bring a claim in California? What does that entail?
Maybe you are a woman in the aerospace industry in South Bay? Or a woman in the burgeoning tech companies Venice or Santa Monica in Silicon Beach? Or a nurse in a medical facility in Los Angeles or the surrounding area? What should you know about sexual harassment?
This article addresses some of the nuts and bolts of these issues for employees in California. In order to help guide the reader, we have organized this article around a series of questions and answers.
What is sexual harassment?
In the first place, sexual harassment in California is made against the law by the Fair Employment and Housing Act and its implementing regulations and a whole lot of case law interpreting it. The laws are well-established and include harsh civil remedies such as compensation not only for humiliation and embarrassment and emotional injury but also lost wages and punitive damages. Verdicts reaching tens of millions of dollars have been issued by juries to California plaintiffs and successfully defended on appeal.
Sexual harassment is any unwelcome conduct in the workplace based on sex that is severe or pervasive. Examples of the conduct as set forth by the Department of Fair Employment and Housing might include;
Unwanted sexual advances;
Offering employment benefits in exchange for sexual favors (often referred to as quid pro quo harassment)
Leering; gestures; sexually suggestive objects, cartoons or posters;
Derogatory epithets, comments, slurs or jokes
Graphic comments, sexually degrading words, or suggestive or obscene messages or invitations;
Physical touching or assault as well as blocking movements;
The aggrieved conduct can be between a man and a woman or people of the same sex. The law does not require a showing of actual sexual desire. The unwelcome conduct can express gender hostility such as a man repeatedly referring to women with derogatory epithets in the workplace.
What does it mean for employee to bring a claim for sexual harassment in California?
A claim for sexual harassment against an employer could take the form of a confidential letter to the employer, addressed to the senior human resources official and to other members of top management. The letter would set forth the different types of conduct constituting violations of the Fair Employment and Housing Act and demand compensation for injuries caused by the harassment. This type of approach might also include a draft Complaint so that the employer understands that if a private negotiation is not productive that the matter will be taken into court. In these instances it is often helpful to simply request mediation (typically day-long negotiation conducted by retired judge or other neutral party) rather than ask for a specific dollar amount. If the employer is willing to engage in this type of negotiation prior to the filing of a complaint in court, it might take 60 to 90 days to resolve the dispute, assuming that the negotiation leads to a settlement. It is important that these negotiations be handled professionally. No claimant with a righteous claim wants to leave the impression that they are engaged in extortion or other unlawful conduct. The wording of any letter or claim brought to the attention of company management needs to be carefully drafted.
Likewise, in some instances the Plaintiff may have signed a valid and binding arbitration agreement, obligating him or her to bring the claim in front of an Arbitrator instead of a jury. If the harassment victim does not challenge the validity of the arbitration agreement in open court by filing a complaint in court, and instead goes directly into arbitration, the matter would remain private and confidential in arbitration. Arbitration is a hearing in front of the Arbitrator that the parties select to decide the case. The Arbitrator is frequently a retired judge. Generally speaking, cases in arbitration have a lower value than cases decided by a jury in court. But that does not mean that this forum should be disregarded or the case abandoned.
Filing in Court
Of course, a claim for sexual harassment might also mean directly filing a case in court. Before a case is filed in court, the claimant must secure a Right to Sue from the Department of Fair Employment and Housing. This can be done online. It is largely an administrative process, but the claimant needs to understand what violations of the Fair Employment and Housing Act they are suing for, what entities or persons they are specifically suing, and the factual basis for the claims. There are deadlines to do this. The filing must be timely.
Once the Right to Sue is secured, the lawsuit itself can be filed in court. A lawsuit filed in court this way is a public document. Anyone who does a search can find it. It resides on the court’s docket online. There are deadlines for filing the lawsuit after the Right to Sue is secured.
If the harassment victim files in court, does that mean that she will necessarily be testifying in court about her case in front of a jury?
Probably not. Relatively few cases go to trial. If the case is filed in court, it is very likely that a deposition of the harassment victim will be taken. The deposition is to take testimony and is conducted in the conference room of one of the lawyers on the case. The deposition can last a few days, or may be done in the better part of one day, depending on the defense counsel and the facts of the case.
By the time, the Plaintiff’s deposition is taken, and the depositions of the opposing party are conducted, there is frequently an interest in settlement. At this point, the case can be taken before a retired judge or other attorney neutral to determine whether a compromise can be reached.
Of course, many times the cases are litigated until after the defendants file a Summary Judgment Motion. This is close to trial. The summary judgment motion is supposed to prevent the case from going to trial. Although the Motion may be successful in removing some causes of action, typically the case is permitted to go forward. The mediation is scheduled either during the pendency of the Summary Judgment Motion, or after the court has ruled.
In relatively few instances, the case will go into trial when any prior mediations are unavailing. And it is solely in those instances when the harassment victim testifies in open court in front of the jury. California has legislation to protect the privacy of the Plaintiff in sexual harassment cases. The defense can ask about your relationship with the harasser—but not with anyone else absent a Court order.
Even after a verdict is reached in favor of the Plaintiff, there are opportunities for settlement if the Plaintiff wishes. For example, the Defendant employer may seek a settlement of the awarded amount in exchange for its agreement not to appeal the verdict.
An important point to remember for employees in the workplace is that you can work with your lawyer to design a strategy that is right for you. There are many ways to handle sexual harassment claims. Most claimants in most instances do not appear before cameras or at a press conference. Many claimants do not even file a lawsuit in court. Even if you file in court, it does not mean that the case will lead to trial and testifying in court, although for the aggressive litigant, that door remains open. Women and men interested in exploring their options should contact an experienced attorney who can lay out different alternatives. Although beyond the scope of this piece, it is important to point out that there are other Common law and statutory causes of action, outside what has just been described, that may also be available to a victim of sexual harassment. These causes of action may significantly strengthen your case and help you to win.
If you wish to prevail in your case, it is helpful to have witnesses who have observed the sexual harassment or who have themselves been subject to it by the same harasser. Credibility is generally enhanced and liability increased if the victim of the harassment has complained about the harassment during the course of employment. You should not approach potential witnesses on your own. This is the job of a private investigator. If you are aware of documents that contain the harassing remarks–this can be very important. Emails and text messages and social media messages constitute strong evidence in some cases.
Keeping a contemporaneous written journal of the incidents involved can be very helpful, including an indication of who was present. In California, supervisors are agents of the employer and the employer is strictly liable for their actions. The supervisors or other harassers are individually liable for their actions. It is against the law to secretly record people without their permission. Also, do not destroy any documents, ever, including any social media. It will only hurt your case if you do. Going forward, be careful about what you post, if you post at all. These records are often reviewed by employers and their attorneys.
Medical records that document the damages suffered are also very helpful. This might be records from a family doctor or a treating therapist or both.
There are many details and nuances involved in the way these cases can be handled. Anyone who believes they have been sexually harassed or abused in the workplace should contact an attorney to discuss the matter. Keep in mind that as the claimant, you have a lot of control about how the complaint is made to the employer and at what stage it is resolved. Design a strategy that fits your objectives.
Steve Rubin is an attorney in Los Angeles and the founder of Rubin Law Corporation. He can be reached at 310 385 0777 or firstname.lastname@example.org.