Sexual Harassment in the Workplace
A San Francisco sexual harassment attorney can help employees understand whether they have a legal claim for compensation
Despite the city’s progressive reputation and increased awareness of the problem, there are still many employees in San Francisco and elsewhere who are subjected to sexual harassment. Unfortunately, the law tolerates a certain degree of inappropriate behavior in the workplace. Moreover, employment law is complex, and not all harassing acts entitle a victim to compensation. A San Francisco sexual harassment attorney can help employees identify those acts and patterns of sexual harassment for which they can seek a remedy.
Sexual harassment is a form of sex discrimination. While sex discrimination can consist of unequal pay or a denial of job opportunities based on gender, sexual harassment refers to unwelcome sexual advances, requests for sexual favors, sexualized conduct, and other kinds of sex-based harassment or misconduct in the workplace.
Under California law, sexual harassment claims may also be based on harassment directed at sexual characteristics, such as gender identity and sexual preference. Sexual harassment of an employee can be committed by employees of the same or opposite sex.
In some cases, sexual harassment is easy to recognize. However, it may be more difficult to determine whether inappropriate acts that are more subtle or isolated constitute the kind of sexual harassment that entitles a victim to a legal remedy. Here are some guidelines for employees to keep in mind when they consider their need for advice from a San Francisco sexual harassment lawyer.
1. Was the employee a victim of sexual touching?
Courts will often deem extremely offensive behavior of a sexual nature to be sexual harassment, even if the behavior occurs infrequently. On the other hand, behavior that may be considered less offensive may need to occur repeatedly over a period of time before a court would agree that the pattern of conduct constitutes actionable harassment or creates a hostile work environment.
The victim of a sexual assault at work by the owner or manager of the business, or by a supervisor who has the authority to affect an employee’s terms of employment, will nearly always be entitled to seek compensation for sexual harassment. Victims should consider reporting the sexual assault to the police, and should contact a San Francisco employment attorney who handles sexual harassment cases.
Sexual assault or unwanted sexual touching by a co-worker or a customer does not always give rise to a sexual harassment claim against an employer. However, if the employee reports the sexual touching to management and management does nothing to protect the employee from future harassment, the employer may be liable for sexual harassment.
Other kinds of touching — a hand on the back or brushing against the employee in a suggestive way — might not give rise to a remedy if the act is not repeated. An employee who regards touching as offensive should consider telling the person who touched her to stop doing it. It is usually also wise to make a complaint to the Human Resources department. If the unwanted touching continues even after that complaint is lodged, the employee should consider seeking legal advice from a sexual harassment lawyer.
2. Has the employee been asked to provide sexual favors as a condition of employment?
When an employee’s supervisor requires an employee to provide sexual favors as a condition of keeping a job, receiving a raise, or obtaining other employment benefits, the employee has experienced sexual harassment. That form of sex discrimination, known as quid pro quo harassment, takes advantage of the power disparity between managers and employees. A claim for quid pro quo harassment may be brought if the employee requests the supervisor’s sexual advances or if the employee feels pressured into accepting those advances.
A single act of quid pro quo harassment is usually enough to trigger the right to bring a harassment claim. A sexual harassment attorney should review the facts as soon as possible after the incident occurs.
3. Has the employee been subjected to unwanted sexual remarks or behaviors?
When unwelcome sexual advances, comments upon an employee’s physical attributes, or lewd jokes pervade the workplace, an employee will generally have a basis for bringing a sexual harassment claim based on a hostile work environment. Isolated remarks, however, may not be sufficient to trigger the protection of sexual harassment laws.
Offensive remarks that are gender-based can constitute sexual harassment even if the remarks are not sexual in nature. For example, a supervisor who stereotypes employees based on gender or sexual orientation can create a hostile work environment in violation of sexual harassment laws.
Lewd cartoons, photographs from pornographic magazines, and sexually suggestive graffiti can also create a hostile work environment. A single calendar showing pinup models might not meet that standard, but a series of offensive images might give rise to a sexual harassment claim if management is aware of the problem and takes no action to stop it.
The employee’s first step may be to try to work with the supervisor or employee to address the problem, or report the issue to human resources. If the company has a sexual harassment policy, it is important to follow that policy so that the company has a chance to correct the problem. If the problem persists after taking those actions, the employee should ask a sexual harassment lawyer to evaluate the situation.
4. Is workplace abuse directed only to employees of one gender?
Treating employees of one gender less favorably than the other can constitute sex discrimination when the unfavorable treatment involves wages, benefits, or other terms and conditions of employment. At the same time, directing abuse only to members of one sex or sexual identity can constitute sexual harassment even if pay and benefits are unaffected.
For example, sexual harassment can consist of requiring members of one gender to do specific tasks (like cleaning bathrooms) that are never assigned to workers of the opposite gender. Task assignments are particularly likely to be recognized as a form of sexual harassment when they reflect common stereotypes.
Sexual harassment can also create a hostile work environment when a manager targets members of a particular gender or sexual identity for abuse. Shouting, using foul language, making threatening physical gestures, and invading an employee’s personal space are all examples of sexual harassment when victims of the abusive behavior are selected because of their sex or sexual identity.
When you need advice
The attorneys at Minnis and Smallets have represented many employees in the San Francisco bay area who have been sexually harassed at work. If you have questions regarding sexual harassment at work we can advise you of your rights and options. To tell us about your specific experiences call us at 1-415-551-0885 or submit our online contact form.