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What are Two Types of Sexual Harassment?

         Sexual Harassment

California’s Fair Employment and Housing Act (FEHA) broadly describes two ways to categorize sexual harassment at the workplace. Under the Act, sexual harassment refers to: (a) unwelcome sexual advances or other types of physical, verbal or visual misconduct of a sexual nature; and/or (b) actions that create a hostile, offensive or intimidating workplace environment based on a worker’s sex.

While the essence of sexual harassment worker protection laws under FEHA is similar to the provisions under federal law (Title VII), unlike the federal law which only covers companies with at least 15 employees, the FEHA provides broader protections for all California workers. Therefore, no matter whether your employer has fewer than 15 employees, or whether you are an employee, independent contractor, volunteer or intern, you have sexual harassment protections under FEHA.

Moreover, while sexual harassment claim damages may be capped under federal law, there is no upper limit to the amount of financial damages you may be awarded under FEHA. At Rubin Law Corporation, we have the skills, experience and resources to prove sexual harassment liability, and help you achieve the maximum compensation you may be entitled to under the law.

Unwelcome or Unwanted Sexual Advances by a Supervisor

FEHA prohibits unwelcome or unwanted sexual advances made to an employee or a job candidate. This type of sexual harassment includes expressions of sexual or romantic interest that are unwelcome, unwanted, non-reciprocated, offensive, or unpleasant to the person at the receiving end of these sexual advances.

An employee’s supervisor is usually in a position to make such sexual advances with an implied or express threat of denying promotion, pay raise, job-related benefits, or even terminating the targeted employee if they refuse to submit to the sexual advances. Under the FEHA, this form of sexual harassment is recognized as “quid pro quo” harassment. In general, the employers have strict liability where a supervisor abuses their authority to engage in quid pro quo sexual harassment.

Under the FEHA, to establish a valid claim of quid pro quo sexual harassment, our attorneys at Rubin Law Corporation will prove the following legally required elements:

  • You suffered unwelcome and unwanted sexual advances, actions, or demands.
  • The unwelcome sexual advances were made by a supervisor (which could be your direct or immediate supervisor or another superior that ranked higher than the immediate supervisor).
  • Upon your refusal of the sexual advances from the supervisor, a clear adverse employment action would occur against you because of your refusal.

The “sexual favor” or “sexual threat” under quid pro quo sexual harassment occurs either in the form of an employment benefit or an adverse employment action. For your quid pro quo sexual harassment claim to be valid under California law, the supervisor should have actually carried out the threat.  

Hostile Work Environment Sexual Harassment

The FEHA defines sexual harassment by way of a hostile work environment as unwelcome sexual conduct or comments that create a hostile, offensive or intimidating work environment or unreasonably interfere with the work performance of an employee. The harassment should be pervasive or severe enough to make the workplace hostile. The perpetrator of hostile work environment sexual harassment under the FEHA could be a supervisor, manager, coworker or a customer.   

When employers fail to take prompt and appropriate corrective steps, they could be held liable for the hostile work environment sexual harassment occurring because of the sexual conduct or comments of a supervisor or coworker. The employer could also be held liable even if the perpetrator that created a hostile work environment is a third party, such as a customer or client. Moreover, in California, any employee affected by the hostile work environment sexual harassment may have a claim for damages, even if the sexual conduct or comments were not aimed at them.

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Sexual Harassment by Physical Touching

Workplace behavior involving touching of sexual private parts of an employee is likely to be considered as sexual harassment in California. Even if the physical touching only involved rubbing of legs or such other seemingly less offensive contact, it could still be viewed as sexual harassment by California courts.

Importantly, under FEHA, physical touching need not necessarily be driven by a sexual urge or sexual intent to constitute a sexual harassment offense. Physical touching of an employee may sometimes occur simply as a way of exerting power over them. When physical touching is unwelcome and carried out as a sexual advance by a superior at the workplace or is pervasive or severe enough to constitute a hostile work environment, it is very likely to be viewed as sexual harassment under California laws.

Sexual Harassment by Making Sexual Jokes

If sexual joking at the workplace creates a hostile work environment, workers in California can seek protection under FEHA as well as under the Civil Rights Act Title VII and bring the perpetrators to justice. The perpetrator could be of any gender, and the perpetrator and the victim could be both of the same sex in California.

Unwanted, unwelcome or offensive sexual jokes may include sexually explicit humor, jokes, innuendo, stories, or ostensibly witty remarks laced with sexuality. If it is proved that the sexual joking was frequent, persistent or pervasive enough to create a hostile work environment, the perpetrators can be held liable for sexual harassment.

Sexual Harassment by Staring or Leering

Although not all looking would constitute “staring” or “leering” at the workplace, persistent staring or leering may be considered as a form of sexual harassment in California. A persistent gaze would indicate staring, while leering may cover not just the eye movements of the perpetrator, but also their facial expressions suggesting a sexual desire.

When staring or leering is accompanied by other lewd behaviors or gestures, whistling, catcalling, following the victim, blocking their way, looking them up and down, or focusing persistently on their sexual private parts, it is more likely to be viewed as sexual harassment in California courts.

Sexual Harassment by Text or Email

Sending sexually explicit texts (“sexting”) or emails to an employee would constitute sexual harassment under FEHA if the communication was unwelcome and unwanted by the victim. When a supervisor or coworker does it, whether during work hours or post-work, it is best to let them know clearly that this type of communication is unwelcome. Make your response preferably in writing, and save a copy of it. At the same time, notify the HR team about the incident or follow the prescribed grievance procedure outlined in your employee handbook.

If the sexual texting, emails, or chats continue despite your counter-action and the employer fails to take steps to protect you, our experienced California sexual harassment lawyers can establish evidence and prove your employer’s liability for the sexual misconduct of the supervisor or coworker. Showing sexually explicit videos, audio, images or pictures without consent may also constitute a form of sexual harassment under California laws.

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Sexual Harassment by Surveillance or Spying

California has a number of employee privacy protection laws in place. A violation of these laws along with a sexual intent may constitute sexual harassment. For example, under section 653n of the California Penal Code, employers must not install a surveillance mirror in the restroom, locker room, fitting room or shower.

Similarly, section 435 of the California Labor Code prohibits employers from making audio or video recordings of an employee in a room for changing clothes, restroom or locker room. Under section 632.5 of CPC, employers are prohibited from intercepting communication without consent from the employee’s personal cell phone.  The California Fair Employment and Housing Act (FEHA) also prohibits employers from using video or camera surveillance to subject workers to sexual harassment.

Sexual Harassment by Verbal Comments

Inappropriate words, comments, or remarks at the workplace can feel humiliating or degrading, even if no physical touching, sexual assault, or other repeated sexual advances were involved. FEHA prohibits verbal harassment at the workplace on the basis of sex.

If another employee, including a coworker or a supervisor committed this type of harassment, and your employer failed to take timely and appropriate measures to protect you despite knowing (or being in the position to know) about the incident, our attorneys may be able to hold the employer liable for verbal harassment. Under FEHA, your employer is required to put in place all reasonable steps to prevent workplace harassment, including verbal sexual harassment.

Sexual Harassment by Innuendo

Sometimes the harasser may attempt to use a subtle or indirect language to insinuate or suggest sexually offensive content. This is recognized under the FEHA as sexual harassment by innuendo. For example, when a supervisor or coworker persists with indirect sexual remarks, such as: “I wish every woman had your kind of body” or “This top fits you so well,” you might have a sexual harassment case by innuendo.      

It is important to remember that you don’t have to show the existence of any “sexual favors” or “sexual threat” of a negative employment action in order to claim that you were sexually harassed in a hostile or offensive work environment in California. This type of environment may be created by one or more coworkers and/or supervisors at the workplace.

Get Strong Legal Representation From Trusted and Proven Sexual Harassment Attorneys

Led by top-rated employment attorney Steven Rubin, our legal team at Rubin Law Corporation has an exceptional record of success in sexual harassment cases in California, even those that involve wrongful termination. With an experience of nearly three decades and backed by extensive legal skills and resources, we have what it takes to hold the negligent employers and other at-fault parties liable for the largest possible damages for your sexual harassment claim. To schedule a consultation with us, call us at (213) 996-0196 or contact us online