What is Sexual Harassment?

Photo by: Sebastian Pichler

Taylor Swift’s testimony in her countersuit against former radio host David Mueller for alleged assault and battery has been making the rounds on social media. Taylor Swift won her counter-claim, which sought a symbolic $1 to make a point. The lawsuit argued that the trial would “serve as an example to other women who may resist publicly reliving similar outrageous and humiliating acts.”

Now that Taylor Swift has spoken publicly about being groped, more women (and men) may be emboldened and find the courage to speak up. The issue of sexual harassment is now in the spotlight and on people’s minds, which means that inappropriate conduct in the workplace that may have previously been swept under the rug may start seeing the light of day in the form of complaints in the workplace.

Below are some basic answers to frequently asked questions about sexual harassment in the workplace.

What is sexual harassment in the workplace?

Sexual harassment is harassment that is based on a person’s sex.

In California, “harassment” in the employment context is defined as:

— verbal harassment, such as epithets, derogatory comments or slurs (or repeated romantic overtures, sexual comments and jokes or prying into one’s personal affairs);

— physical harassment, such as unwanted touching, rubbing against someone, assault and physical interference with movement or work; or

— visual harassment, such as derogatory cartoons, drawings or posters or lewd gestures.

There is a common misconception that the law prohibits all forms of “harassment” or generalized bad treatment at, however that is not the case. Harassment is unlawful only if it is based on one of the characteristics protected by federal or state anti-discrimination laws. In the case of sexual harassment, it is the victim’s sex/gender. Another misconception is that the harassment has to be motivated by a sexual desire. However, in California, it does not.

What duties do employers have?

In California, section 12940 of the Government Code prohibits “harassment” on the basis of “sex,” “gender,” “gender identity,” “gender expression” or “sexual orientation” (or race, religious creed, color, national origin, ancestry, physical or mental disability, medical condition, genetic information, marital status, age or military and veteran status). Therefore, employers are prohibited from engaging in harassing conduct.

However, in addition to requiring employers to refrain from harassing conduct, California’s Fair Employment and Housing Act (“FEHA”) affirmatively requires employers to take “all reasonable steps necessary to prevent discrimination and harassment from occurring.” (Gov. Code § 12940(k).)

Who is covered by the ban on harassment under FEHA?

All employers in California, regardless of the number of employees they have, are covered by the ban on harassment. The protection against harassment is broader than for discrimination, which covers employers who have five or more employees.

On the other side, the FEHA extends protection to independent contractors, unpaid interns and volunteers, as well as employees and job applicants.

What to do if there is sexual (or any other type of harassment) in the workplace?

Consult the employee handbook. Since every employer is subject to the ban on harassment, every employer in California, regardless of size, should have an anti-harassment policy that defines the prohibited conduct, outlines the procedure to make a complaint and the investigation to follow, and ensure non-retaliation for good faith complaints.

Individuals subject to harassment should, if possible, communicate and express your discomfort, report the conduct, and keep good records of the who, what, when, where, and how.

Contact me at (949) 529-0007 if you need assistance related to an incident of harassment.

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In: Employment Law

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