In addition, most state law covers sexual harassment. In California, sexual harassment is prohibited in the Fair Employment and Housing Act (FEHA) and enforced by the Department of Fair Employment and Housing (DFEH). The Act prohibits discrimination in all employment practices on the basis of gender, including unwelcome sexual advances and requests for sexual favors.
Specifically, the law states: “Unwelcome sexual advances, request for sexual favors, and verbal or physical conduct of a sexual nature constitute sexual harassment when:
(1) Submission to such conduct is made either explicitly or implicitly a term or condition of employment,
(2) Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or
(3) Such conduct has the purpose or effect of reasonably interfering with an individual’s work performance or creating a hostile, intimidating, or offensive work environment.”
1. Speak up.
Victims may be reluctant to speak out about sexual harassment for fear of creating commotion at work that could be detrimental to their careers. However, unchecked sexual behavior at work can escalate. It’s important for employees to know that speaking out about the harassment, first addressing the harasser and then addressing the supervisor in charge, is an important step in acquiring the full protection of the law.
A harasser should be told clearly to stop, and supervisors should be notified as early on as possible. Make a clear statement of disagreement with the harassing behavior using a certified letter. Keep the certification for your records and proceed by keeping detailed records of each occurrence that follows. Keeping detailed records can impact the outcome of a complex sexual harassment case.
2. File complaints through all proper administrative channels.
For incidents of sexual harassment that do not end with a clear and direct expression of disagreement, the next step may be to contact a supervisor or manager. Let the manager know that the harassment is unwelcome and persistent, even after requests to stop. A supervisor or manager has the responsibility, after becoming aware of instances of sexual harassment, to take steps to change the situation for the better. Dismissal of harassment as just “horseplay” or insults about the victim’s inability to “take a joke” and similar modes of avoidance could be considered illegal.
Always be aware of company policy concerning sexual harassment. This policy should outline the proper way to formally address inappropriate incidents. Court claims of harassment sometime depend heavily on whether all administrative remedies through an employer have been exhausted before a lawsuit or charge is filed. For instance, the DFEH requires that employees go through all proper administrative channels before a charge for any of the discrimination provisions in the FEHA can be asserted.
3. File a charge with the state employment rights agency and/or the Equal Employment Opportunities Commission.
Under Title VII, every worker in companies with 15 or more employees has the right to a workplace free of sexual harassment. When a violation of this mandate occurs, the EEOC is the federal agency charged with investigating the matter. Filing a charge with the EEOC is the first step in initiating a formal investigation into incidents of sexual harassment as well as an employer’s response to complaints. Employees have 180 days after the last instance of harassment to file a charge of sexual harassment with the EEOC.
Most states also have laws in place to address sexual harassment as well as state agencies responsible for enforcing these laws. California’s DFEH requires that no more than 1 year pass between the last instance of sexual harassment and the time a charge is filed. A timely filed charge of sexual harassment can then be investigated by specialists and determined to be either valid or invalid. An employee will be granted the right to pursue the matter in court if the agency decides not to pursue it themselves.
4. Consult your attorney.
It is always a good idea to consult your attorney early on in the process of upholding employment discrimination rights. With the proper experience, a lawyer can assist employees throughout the filing process for both state and federal agencies. The EEOC or the state agency where a sexual harassment claim is filed may be able to help with finding an experienced employment discrimination attorney for sexual harassment claims.
One of the best things about working with a lawyer is the extensive legal knowledge at his or her disposal. Often, there may be more than one law that has been violated when sexual harassment occurs. A qualified attorney should be aware of all possible causes of action that apply under the particular circumstances of a case. Also, strategies for litigation that only a qualified attorney is capable of implementing can go a long way toward success in a sexual harassment case.
5. File a lawsuit.
After careful consultation with your attorney, you may be advised to file a lawsuit. Keep in mind, there are statutory time limits for filing a lawsuit in sexual harassment cases. Lawsuits must be filed no more than 90 days after the EEOC has granted permission. State statutes of limitation for sexual harassment claims vary. In California, the limit is no more than 1 year after the DFEH issues notice of the right to sue.
Under FEHA, the 90-day statute of limitations for filing a lawsuit may be tolled under certain circumstances. A tolled statute of limitations means that the normal run-time for the limitation is suspended until after certain steps are taken. In California, when an employee uses an adminstrative remedy to resolve sexual harassment issues, the statute of limitations is tolled automatically during the time it takes to complete administrative proceedings.
Knowing What to Do and When
Knowing what to do about sexual harassment, and when, can bring the peace of mind necessary to follow a complaint all the way through to complete resolution. Addressing sexual harassment claims requires the assistance of a competent attorney familiar with the employment discrimination law landscape. If you need legal advice or assistance for successful resolution of a sexual harassment claim, contact Shegerian & Associates today.