Sexual harassment is a reality. It happens everyday in the workplace. The recent case of the Berkeley employer who allegedly sexually abused women from India is an extreme example of a common immigrant experience. Despite recent publicity and increasing litigation against employers, sexual harassment continues and sadly it is here to stay -- and immigrants are frequently the most vulnerable.
But if you are a victim of sexual harassment in the workplace, you don’t have to just take it. The days are over when women must simply swallow their pride, live in fear and humiliation, and hope that it “will just stop”. You can fight back.
Sexual harassment is a form of illegal
sex discrimination.
According to both federal and California law, sexual harassment is a violation of employment discrimination laws. When a supervisor harasses a female employee, for example, he is discriminating against her on the basis of her sex, according to the law. This allows the employee to complain to federal and state agencies charged with enforcing these laws. And if the employee is dissatisfied with the agency’s action, she can sue the employer in federal or state court.
Sexual harassment takes different forms.
Most people realize that if an employer touches a female employee’s breasts, this is sexual harassment; but they think that other demeaning or abusive behavior is permissible. The laws against sexual harassment prohibit any unwelcome sexual conduct or commentary that creates an intimidating, hostile or offensive work environment.
The following are all examples of illegal sexual harassment:
·
- propositioning an employee for dates or sex
- telling inappropriate sexual jokes or remarks
- bringing into the workplace pornographic pictures, materials
or images on the computer
- touching an employee inappropriately including, in some
cases, hugging, kissing, rubbing against someone, caressing
one’s shoulders or back, other unwanted physical contact
- requiring employees to wear certain suggestive clothing
- gawking or leering at an employee
- making inappropriate comments about an employee’s appearance
- making statements that women are inferior to men (or vice-versa)
- attempting to use one’s position as a supervisor to obtain
an employee’s acceptance of sexually inappropriate behavior
or an employee’s romantic affections.
Although it is usually
men who sexually harass women, sexual harassment can also
include women harassing men, men harassing men, or women
harassing women. The perpetrator may be a heterosexual or
a homosexual. Sexual harassment occurs whenever someone
is subjected to sexually inappropriate behavior on account
of one’s gender.
An Employer’s Duty to Investigate Complaints.
The employer has a duty to investigate all claims of sexual
harassment. An employer’s failure to investigate promptly,
adequately and confidentially may subject it to separate
liability under federal and state law.
An investigation
must be done promptly. In some cases, this means within
hours. At the least, while the matter is being investigated,
the harasser should be separated from the victim of harassment.
If the harasser is his or her supervisor, a different supervisor
should be assigned. Many employers believe it is acceptable
to maintain the status quo while an investigation is conducted,
as if nothing happened unless or until it can be proven
that something happened. The victim is left to continue
working with the harasser, a situation now even more unpleasant
given the harasser’s knowledge of the complaint. Another
common response is to move the victim, not the harasser;
to change her schedule, move her workplace, put her on leave
– even if it is not her choice. A federal case in California
suggests that this is an inappropriate response. The victim
should not be inconvenienced or penalized, even slightly,
for her complaint of sexual harassment.
If you are the victim of sexual harassment,
insist that your rights are respected; your schedule and your
work location should be maintained and the employer should
move the harasser wherever practicable.
An investigation of a sexual harassment complaint
must be thorough, including in most cases interviews of the
victim, the harasser and other witnesses. Many employers,
if they do an investigation at all, simply go through the
motions. They take down the victim’s story – usually so as
to get all the details in the event of a future lawsuit. Many
times it is tape recorded or videotaped. But then little or
no questioning is done of the harasser. The testimony of third-party
witnesses is not obtained.
If you are a victim of sexual harassment, you
should seek legal advice before allowing an employer to interview
you and in particular record your interview.
An investigation must be
impartial, done by an objective party, not connected to the
conduct in question. Many employers will simply use the harasser’s
supervisor or someone under his supervision to investigate
the complaints. Obviously someone within the control or influence
of the offending individual is not sufficiently impartial.
Likewise, an impartial investigation cannot be done by someone
who supervises the harasser and may look bad if the harassment
is confirmed to have occurred by the investigation. An investigation
should be conducted by someone from outside the company, or
at least a separate department of the company.
An employer
must do whatever is possible to protect the victim’s confidentiality.
Sexual harassment is a personal matter. While there is a duty
to investigate, an employer should not treat the subject like
it’s the latest gossip in the workplace. The matter should
be treated seriously, but discreetly. Persons who have no
reason to know the details of the allegations should not be
told. Meetings with the victim should be conducted in a confidential
manner in a secluded setting.
If the investigation confirms
that sexual harassment did occur, the employer must take appropriate
disciplinary action against the perpetrator. It is not enough
to simply separate the perpetrator from the victim, although
that needs to be done where practicable. The perpetrator must
be shown that this behavior will not be tolerated. In some
cases, this may mean he or she is fired.
If you have complained about sexual harassment
and your employer has failed to conduct an adequate investigation
or failed to take disciplinary action against those responsible,
your employer may be liable under federal and state law --
simply for its improper response to your complaint.
It
is Illegal for an Employer to Retaliate Against a Victim of
Sexual Harassment.
Employer do sometimes retaliate against
an employee for raising claims of sexual harassment -- but
they do so at their own peril. Retaliation is considered firing,
denial of promotions, denial of pay raises, work assignments,
denial of leaves of absence or adverse action in almost any
other aspect of employment. Any such adverse action taken
against an employee within a relatively short time period
after the employee makes a complaint of sexual harassment
will be considered suspect. If it is later found to be retaliation
for the complaint, the employer will be subjected to separate
liability for violation of federal and state laws – whether
the sexual harassment is proven to have occurred or not. An
employee has an absolute right to complain about harassment
without fear of retaliation by her employer.
If any adverse employment action is taken against
you because you have made a sexual harassment complaint or
cooperated with another employee making a complaint, your
employer may be liable to you for violations of federal and
state law.
Complaining of Sexual Harassment to the Federal
and State Authorities.
Before any lawsuit can be filed against
an employer for sexual harassment, an employee must file a
complaint with either the federal or state authority charged
with investigating such complaints. This is designed to give
the employer time to remedy their conduct prior to being sued.
In many cases, it is simply a formality that must be taken
care of prior to a lawsuit.
EEOC. The Equal Employment Opportunity Commission is the federal agency which investigates complaints of violations of federal civil rights law (Title VII) in employment.
The EEOC has offices throughout the country. Below are the addresses of several EEOC offices in the Northern California/Bay Area:
- EEOC 901 Market St., #500
San Francisco, CA 94103
(415) 356-5100
- EEOC 1301Clay St., #1170N
Oakland, CA 94612
(510) 637-3230
- EEOC 96 N. Third St. Ste. 200
San Jose, Ca. 95112
(408) 291-4231
DFEH.The Department of Fair Employment and Housing is the state agency which investigates complaints of violations of state employment discrimination laws. The DFEH has offices throughout the state. Below are the addresses of several DFEH offices in the Northern California/Bay Area:
- DFEH 1330 Broadway, # 1326
Oakland, CA
(510) 622-2941
- DFEH 30 Van Ness Ave., #300
San Francisco, CA 94102-6073
(800) 884-1684
- DFEH 111 No. Market St., #810
San Jose, CA 95113
(408) 277-1277
You Must Act Promptly After Harassment Occurs. There
are many reasons why a victim of sexual harassment might not
want to come forward. An employee may feel too degraded or
humiliated to bring the subject up. An employee may feel unsure
of her rights. She may fear retaliation by her employer. If
she is an immigrant, she may be afraid that her own immigration
status may be affected or she could be deported.
But for many reasons, a victim of sexual harassment
must try to overcome these fears and inhibitions and report
the conduct as soon as possible after it occurs. Employers
now regularly use an employee’s delay in reporting harassment
against them. In many cases, they claim this is evidence that
the harassment did not even occur. Moreover, they will claim
their ability to conduct an investigation was hampered by
delay between the time of the harassment and the time of the
complaint. Finally, there are strict time limits for making
complaints with outside government agencies, a requirement
before filing suit. A complaint before the DFEH must be made
within one year of the forbidden conduct. A complaint before
the EEOC must be made within 300 days. And there are deadlines
for filing a lawsuit; in some cases, a lawsuit should be filed
within one year in order to protect all of an employee’s rights.
WARNING: The following is article
discussing legal issues. It is not intended to be a substitute
for legal advice. We recommend that you get competent legal
advice specific to your case. If you would like such advice
from our office, call (415) 777-4445 or (916) 349-2900 or
(408) 993-9737.
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