Since the #MeToo movement took off in 2017, California has implemented multiple laws to protect employees from sexual harassment in the workplace. There have been updates to sexual harassment training requirements, an extension to the statute of limitations for reporting sexual harassment and sexual orientation discrimination claims under the Fair Employment and Housing Act, and more.
With these changes in California employment law and a continued urgency to protect employees and businesses from the trauma and damage of harassment, it is more important than ever to understand how harassment can affect your business. Read on to find answers to some of the most common questions about sexual harassment in California workplaces.
The California Fair Employment and Housing Act (FEHA) defines sexual harassment as unwelcome sexual advances or conduct—whether verbal, visual, or physical—of a sexual nature. Behavior constituting sexual harassment may include:
Quid pro quo is a Latin phrase meaning “something for something,” suggesting an exchange. Quid pro quo sexual harassment occurs when an employee, generally a supervisor or other authority figure, requires another employee or future hire to submit to sexual advances or provide sexual favors in exchange for promotions, raises, continued employment, or other employment benefits.
The FEHA prohibits discrimination and harassment based on sexual orientation, gender identity, or gender expression in California. Sexual orientation harassment is any unwelcome behavior based on perceived or actual sexual orientation in the workplace that creates a hostile work environment for an employee. Gender identity harassment is any unwelcome behavior based on the perceived or actual gender identity of an employee that creates a hostile work environment. Gender expression harassment is any unwelcome behavior based on any expression of gender, typically through appearance, dress, or behavior, that creates a hostile work environment for an employee. These types of harassment may include quid pro quo harassment and/or sexual harassment, such as inappropriate jokes about gender identity, orientation, demeaning comments about sexuality, and more. The landmark 2020 Supreme Court case, Bostock v. Clayton County, ruled that discrimination and harassment based on sexual orientation or gender identity is also prohibited at the federal level.
Employers can help prevent sexual harassment by implementing and enforciong strong anti-harassment policies and procedures. Employers with five or more employees should also provide trainings for their supervisors and employees about sexual harassment and discrimination in accordance with California state guidelines. Having effective policies in place and teaching employees about harassment and its effects on co-workers and the workplace can safeguard against harassment and help minimize risk and liability for the employer.
If a sexual harassment complaint arises, employers must promptly investigate and take appropriate corrective action. Corrective action may include training, counseling, discipline, rescinding of a bonus, or termination. Your company employee handbook should dictate the investigation procedure and the specific consequences for sexual harassment and sexual orientation discrimination.
When an employee makes a sexual harassment complaint, employers have an obligation to conduct a neutral and thorough investigation and, if necessary, to take corrective action against the harasser. Based on the outcome of the harassment investigation and company policy, the employer has the right to fire the harasser.
However, it is illegal for employers to terminate an employee (victim) for making a sexual harassment or other harassment or discrimination claim. If a harassment victim is fired solely for making a complaint, it may be considered a retaliatory wrongful termination. Employers are also prohibited from retaliating in other ways against an employee for filing a harassment complaint. Retaliation can include giving the employee negative evaluations, reassigning their work, making derogatory comments, reducing hours, and more. California labor law also prohibits employers from retaliating against employees (witnesses) who participate in and cooperate with sexual harassment investigations.
If an employee was wrongfully terminated due to sexual harassment, either by the harasser for refusing sexual advances, or as a result of retaliation, or due to a false accusation, the employee can file a wrongful termination claim and hold the company liable. The employer may be required to hire back the terminated employee and be responsible for monetary damages such as lost wages.
Employers should carefully consider the risks of hiring back an employee fired for violating sexual harassment policies. Employers should consider the severity of the harassment, how a rehire may affect current employees and the company culture, and other factors. Any rehiring of or refusal to rehire employees fired for cause should be determined based on your company hiring policy.
Whether you are just starting to create anti-harassment policies, you’re planning your next sexual harassment training, or you’re dealing with a harassment claim, an experienced employment attorney can help. The attorneys at Steinberg Law are prepared to answer your questions about sexual harassment in California workplaces. They have the experience you need to prevent harassment and discrimination and respond to complaints.
Increase your confidence in your sexual harassment policies and training by consulting the team at Steinberg Law today.