Talk About Workplace Harassment
There is lawful and unlawful harassment. Illegal harassment is the kind of harassment that is motivated by some sort of bigotry and is engaged in for the personal gratification of the harasser. An example would be making jokes about people of a certain race or religion or calling members of the other gender offensive names. It can include jokes, comments, touching, posting signs, or sending out emails to other employees. On the other hand, a nasty, mean boss or unpleasant workplace is not necessarily unlawful harassment.
What are the responsibilities of management and human resources in these situations where there could be potential legal harassment?
Under the Fair Employment and Housing Act, an employer has to take immediate and appropriate corrective action as soon as they know or should have known about the harassment. In the case of a supervisor, that obligation may arise immediately without any kind of notice. They must take immediate and appropriate corrective action. This may come in the form of some temporary steps to separate the employees or to initiate an investigation, and it may continue into implementing some permanent remedial steps to prevent the harassment from occurring in the future.
If an employer fails to take immediate and appropriate corrective action, they could be liable for the harassment. They may also then fall into another category and have liability under a separate section of the statute that requiring an employer to take reasonable steps necessary to prevent harassment from occurring. Employers with five or more employees now also have requirements for training employees on harassment. They have to give certain amounts of interactive and classroom training on sexual harassment prevention.
What are my rights and responsibilities, as a victim of harassment in the workplace?
Employees have a right to work in a workplace that is free of harassment, and the law takes that very seriously. We want employees to be able to go to work, do their job, come home, and not be too stressed out about it. There are certain things an employee must do to make sure their claim is taken seriously. The employer needs to be made aware of the harassment as soon as possible. One of the ways that you can prove your case is to show the employer knew about it and didn’t do anything to protect you. It may not be strictly necessary for an employee to use a formal complaint process, but it is a good idea. An employer will very often argue that the employee never reported the incident or never used the formal complaint process. They try to use that argument to make it seem like the employee didn’t do everything they should have done to help fix the problem earlier. We like to make sure the employer doesn’t have that argument.
I was willingly part of a quid pro quo situation. Can I still file a claim of sexual harassment?
Quid pro quo is a situation where the employee got into a relationship with a superior and got some employment benefit from it. In California, you can still bring a harassment suit against an employer or against the harasser in a quid pro quo situation. A sexual harassment claim, at its core, is some sort of unwelcome activity. An employee giving in to the sexual advances of their superior is not necessarily fatal to their claim of sexual harassment, as long as the advances were unwelcome. If they felt like they were in a bind and were going to lose their job if they didn’t participate, they still may have a claim for sexual harassment.
There are also cases where employees were in a prior relationship, the relationship ended, and then, the superior continued to demand sexual favors and make advances that were unwelcome. In those cases, there is still a claim for sexual harassment because the conduct is unwelcome. When there are real demands for sexual favors or unwelcome sexual advances, that is something the law is very interested in wiping out from the workplace. Situations like that are covered by California’s sexual harassment laws.
Will I have any protection from the co-worker or management, if I file for sexual harassment against my colleague?
Retaliation is prohibited. An employer cannot discharge, expel, or otherwise discriminate against an employee because the employee has participated in a complaint of harassment or has testified on someone else’s behalf in a complaint of harassment. The law protects employees from retaliation by their employers in cases when they have made claims under the Fair Employment Housing Act.
What steps are my employer required to take, once the claim of sexual harassment in the workplace has been filed?
There is a requirement that the employer take immediate and appropriate corrective action. This is different in every case and, most often, it starts with an investigation of the complaints. During the interim, many employers will separate the employees into either different shifts or put them under different supervisors, so they are no longer interacting with one another. Depending on the results of the investigation, there could be a variety of results. There are cases where the employer or the third party they hired to investigate find that there was no legitimate claim of harassment. There are other times when they find there was harassment and they take some other corrective action, like permanently separating those employees. They may fire or discipline the harasser or they may transfer the harasser to another job. They may require them and other employees to undergo additional training. The harasser may be placed on leave, but it will depend on the individual facts of the case and whether there is somewhere else to put that harasser during the complaint process or whether they are all stuck in one small office together. A lot depends on the actual circumstances of the case.
Is it possible to keep harassment proceedings confidential?
Most policies that we see from an employer about their sexual harassment complaint process says that a complaint will be kept confidential, to the extent possible. A lot depends on what the investigation uncovers. An employer has an obligation to take immediate and appropriate corrective action, which often includes investigating the complaint and getting to the bottom of what happened. In many cases, that is very difficult to do while keeping the complaint absolutely confidential because some witnesses or participants may not be able to effectively respond and give information if they don’t understand who and what was involved in the potential claim.
What is the likely outcome of a claim of sexual harassment?
There might be some discipline or some training implemented in the workplace after a harassment claim. If it comes to the point where you have to file a lawsuit and or make a demand on your employer through a lawyer, there are a lot of potential outcomes. In a successful case, you can be entitled to all sorts of damages. That includes your lost wages if you missed out on work because you had to leave or you were fired. If you had to be out of work because you were so affected by the harassment, you might be entitled to pay for that time. You might be entitled to medical expenses if you needed to seek mental health treatment or therapy due to the extreme harassment. You might also be entitled to emotional distress damages. When you win a case like this in court, it often includes payment of your attorney’s fees and costs.
For more information on Workplace Harassment, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (213) 257-8999 today.
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