Harassment of any kind is never acceptable, but harassment based on a person's sexual orientation or gender in the workplace can be especially toxic. Sexual orientation and gender harassment in California takes many forms and can cause real trauma. Victims often do not know how to address or fear retaliation if they report it. For some, the only two responses are either to allow it or quit. Neither of those options is acceptable. You should never have to succumb to sexual orientation or gender harassment to maintain your job. Likewise, you should never have to quit your job to escape sexual orientation or gender harassment.
At Lowry Law Firm, our sexual orientation and gender harassment lawyer based in Los Angeles County recovers compensation for victims harmed by sexual orientation and gender harassment. The laws are very specific and stringent as is the statute of limitations, so there is no room for error. Contact me at (818) 797-4321 to schedule a free consultation today.
What Constitutes Sexual Orientation and Gender Harassment in California?
Sexual orientation and gender harassment is sex discrimination in the workplace. It occurs when an applicant or employee is harassed on the basis of their sexual orientation or gender. Under the California Fair Employment and Housing Act, “sex” includes, but is not limited to, a person's gender. “Gender” means sex and includes a person's gender identity and gender expression. “Gender expression” means a person's gender-related appearance and behavior whether or not stereotypically associated with the person's assigned sex at birth. Under the California Fair Employment and Housing Act, “sexual orientation” means heterosexuality, homosexuality, and bisexuality.
Keep in mind, to be considered harassment, the behavior must be more than a simple offhand, isolated comment. Harassment must occur frequently or be so severe that it results in the victim being forced to work in an offensive or hostile work environment.
If you have experienced sexual orientation or gender harassment, contact Lowry Law Firm to learn about how you should proceed. Depending on the facts and circumstances, the next steps you take may vary, but these steps are also what may protect you and your rights as an employee in California.
Examples of Sexual Orientation and Gender Harassment in California
Employers and employees should be clear on what actually constitutes sexual orientation or gender harassment. Following are examples of what is generally considered to be sexual orientation or gender harassment in the workplace.
- Inappropriate sexual gestures
- Making offensive comments about a person's sexual orientation or gender, including their perceived sexual orientation or gender
- Commenting on the physical appearance of others, including particular body parts and/or clothing
- Telling inappropriate or lewd jokes based on a person's sexual orientation or gender
Sexual orientation and gender harassment can take many different forms. So, if the actions of another person in the workspace create a hostile work environment by making you feel as though you are the subject of sexual orientation or gender harassment, get advice on how to handle it today.
Liability in Sexual Orientation and Gender Harassment Cases in California
Employees can be held personally liable for harassing co-workers or subordinates based on their sexual orientation or gender. Employers can also be held liable. Determining when an employee or an employer (or both) are liable for sexual orientation or gender harassment depends on the jurisdiction and the particulars of each situation.
Is the Employer Liable for Sexual Orientation or Gender Harassment?
To start the process to uncover the answer to this question, you should ask other questions, like:
- Was the harasser a person in a supervisory position to the victim?
- Did the harassment result in a hostile work environment?
- Did the employer have control over the employee committing the harassment?
- Did the employer know or should it have known about the harassment and did it fail to take prompt and proper corrective action?
- Did the victim suffer an employment loss, such as being fired or demoted?
- Was anyone in the company aware of the harassment, like a supervisor or someone in human resources?
- Does the employer make each employee attend harassment-prevention training?
- Are there employer policies in place to prevent harassment based on sexual orientation and gender?
- Are harassment-prevention policies implemented and executed?
Whether or not the employer is liable will come down to who, what, where, and when. In California, employers are strictly liable for harassment based on sexual orientation or gender if such harassment is committed by a supervisor or by an agent of the employer. If the harassment is committed by a non-supervisory co-worker, then the employer will be liable if it knew, or should have known, that the harassment was occurring and failed to take immediate and appropriate corrective action. Thus, in California a finding of fault, i.e., that the employer was negligent, is necessary to hold an employer liable for harassment committed by a non-supervisory employee. This alone is the reason why you should speak to an employment law attorney in your area to make sure you know what the law is and if it applies to your case so that you can address it timely and properly.
What Should Employers in California Do to Prevent Sexual Orientation and Gender Harassment?
Employers must take proactive steps to ensure applicants and employees have a safe, comfortable work environment free of hostility, discrimination, and harassment on the bases listed in the California Fair Employment and Housing Act. They can do this by implementing preventive policies and procedures.
Education and Training
Employers should implement company-wide training to educate all employees on what constitutes sexual orientation and gender harassment and how to prevent it. This training should be repeated on a regular basis. It should be kept current, reflecting and incorporating legal updates on the subject.
Open communication regarding sexual orientation and gender harassment should be encouraged, with staff feeling as though they have an outlet to express their concerns.
Enforcement of Unambiguous Policies
Employers should also develop policies that address sexual orientation and gender harassment in the workplace and make clear that it will not be tolerated. When an employee does complain about sexual orientation or gender harassment, their claim should be investigated and the appropriate punishment given to the harasser, if the complaint is validated.
An employer must address sexual orientation and gender harassment claims timely and appropriately in accordance with federal and state laws. Retaliating against an employee for reporting sexual orientation or gender harassment is unlawful, and action can be taken against the employer.
What Are Employee Responsibilities to Prevent Sexual Orientation and Gender Harassment in California?
Employers are not the only ones who need to be proactive to prevent sexual orientation and harassment. Employees must also be active and vigilant to promote a healthy, non-hostile work environment.
Employees should familiarize themselves with the employer's policies on harassment prevention and comply with the mandated rules. They should also remain aware of their surroundings to watch for harassment against themselves and others.
If an employee is harassed based on their sexual orientation or gender, they should immediately object to the harassment, but only if it's safe to do so and within their means. Also, if possible, and if safe to do so, the victim should clearly state that the behavior is unacceptable and will be reported. Likewise, if an employee sees a co-worker experiencing sexual orientation or gender harassment, they can offer support. This support could mean helping the victim protect themselves and/or report the incident to their boss, human resources, or another person or department.
What Should Employees in California Do if Harassed in the Workplace Based on Their Sexual Orientation or Gender?
Employees who believe they are the victim of sexual orientation or gender harassment have recourse. The following actions can help victims protect their rights.
- Keep a record. Employees who have been harassed or discriminated against should keep detailed records of the misconduct, including where and when it happened; a description of what was done or said; the name (or names) of the abuser(s); and the name (or names) of witnesses. Detailed notes are important. Potential evidence, such as emails, text messages, social media posts, photographs, and other evidence of the misconduct, should be preserved. If litigation occurs in the future, it is helpful to have the notes to jog memories and evidence to support the claims made.
- Report the harassment internally. Employees should immediately follow the guidelines in their employee handbook for reporting harassment and discrimination. California employers have a legal obligation to take prompt, appropriate corrective action to stop harassment and discrimination, even while they investigate the allegations, and a further obligation to conduct an investigation. Note, however, that some employers--surprisingly--may violate the law by ignoring complaints of harassment and discrimination and, further, by retaliating against an employee who has reported harassment or discrimination, even if the employer's handbook states that the employer does not to tolerate harassment and discrimination in the workplace; encourages reporting; and states that all complaints will be taken seriously. If an employee doesn't report harassment or discrimination, however, and it continues, then the employer will likely blame the employee for not giving the employer a chance to stop the harassment or discrimination. In sum, reporting harassment and discrimination carries a risk, but so does not reporting it. Employees may wish to speak with an attorney even before reporting harassment or discrimination for advice on what to include in a complaint and what to expect from the employer in response.
- Consider telling someone the employee trusts inside and outside the workplace. If an employee who is the victim of harassment or discrimination ends up having to file a lawsuit, the employer's attorneys may seek to take a deposition from the employee's spouse, domestic partner, or significant other; the employee's roommates; the employee's best friend; the employee's co-workers; the employee's doctor; the employee's therapist; the employee's spiritual advisor; and other people close to the employee. The defense attorneys do this looking for complaints made as things happened. If they find nothing, they will likely argue that the harassment or discrimination didn't happen.
- Be a model employee. Some employers may retaliate immediately against an employee who has reported harassment and discrimination. If they do, the employee's case will be even stronger. Other employers may watch the complaining employee closely to see if they violate any workplace rules or guidelines in order to find a "legitimate" reason to fire or discipline the complaining employee. Once an employee decides to report harassment or discrimination internally, the employee needs to be a model employee.
- Speak to an attorney. If reporting the harassment or discrimination does not resolve the issue, the employee should speak with an attorney who handles harassment and discrimination claims.
In harassment and discrimination cases, time is of the essence. There are limits on how long an employee has to file a complaint for harassment. Determining when the clock starts ticking can be tricky. Further, you may have to file a claim with a government agency, such as the California Civil Rights Department, before you can file a lawsuit. You should consult a lawyer who handles harassment and discrimination claims to ensure all the necessary steps have been taken to preserve your legal rights.
Remedies for Sexual Orientation and Gender Harassment Cases in California
A number of remedies may be available to you if you have been the subject of sexual orientation or gender harassment in the workplace. Three potential and important remedies include:
- Compensation. If you prove your sexual orientation or gender harassment case, you are entitled to compensation. Compensation depends on several factors, including but not limited to the presence and extent of emotional distress, loss of wages, lost professional opportunities, medical expenses (like those for psychological care), and the nature and degree of the harassment.
- Opportunities. If you lost a job or professional opportunity, that job or opportunity could be offered or provided again.
- Alterations. Your employer should make sure your workspace is safe. This can include anything from improved training to the removal of the harasser.
Contact an Employment Law Attorney in Los Angeles County Today
It is critical to consult a sexual orientation and gender harassment lawyer as soon as possible after you have experienced sexual orientation or gender harassment, retaliation, or any other type of discrimination in the workplace. As time goes by, witnesses may forget details and deadlines will expire.
At Lowry Law Firm, our employment law attorney will provide legal guidance and, if necessary and beneficial to you, file a sexual orientation or gender harassment complaint in California. Contact us today by filling out the online form or calling us at (818) 797-4321 to schedule a free consultation.