It is unlawful to harass an employee because of their sex, California Government Code Section 12940(j)(1). Sexually harassing behavior includes:
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SEXUAL HARASSMENT DOES NOT HAVE TO BE MOTIVATED BY SEX
Effective January 1, 2014, sexual harassment does not have to be motivated by sexual desire. The new version of California’s anti-sexual harassment law reads, “Harassment” because of sex includes sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions. Sexually harassing conduct need not be motivated by sexual desire. An earlier version of the bill had indicated the harasser’s intent in engaging in the sexually inappropriate conduct was not the issue in determining whether conduct was sexual harassment.
While sexual harassment is often motivated by the harasser’s interest in gaining sex or a date from the harasser, the Employment Lawyers Group has handled many sexual harassment cases in which the sexual harasser’s motivation was not actual sex. Sexual harassment is often about subjugation, control, and abuse of power.
Cases confusing whether something overtly sexual was sexual harassment began in the 1990s in a male on male sexual harassment case. Various courts could not grasp there are many men who are married, but also engage in sexual practices with other men or want to. In these cases the harassers tried to claim buttocks touching and similar sexually offensive conduct was not sexual harassment because they were straight men.
Ultimately, California law was amended due to an atrociously decided 2011 Northern California sexual harassment case in which a court of appeals absurdly concluded the male on male behavior was not sexual harassment. The sexually harassing events included the supervisor telling the employee he had a nice ass when he bent down, he would look good in little girls’ clothes, he would fuck the employee better than his old lady, he was where he belonged when on his knees, and told him to suck his dick when he was in his face. The supervisor claimed these were all funny jokes. They had overt sexual connotations. Whether the supervisor was gay or not was not important. The supervisor said and did the exact sort of things to an employee that normally constitutes sexual harassment. All of these things were offensive due to sex. Demonstrating the conduct was severe, the harassed employee reported it to his safety manager. The employee was even retaliated against by being called a narc, snitch, and faggot. He was told he was lucky his ass was not kicked after work. The intent of the amendment was to de-publish this case and make sure it was not the law on sexual harassment in California.
Overtly sexual comments made to an employee are sexual harassment. There are plenty of ways to demean an employee, taunt them, or make fun of them in a non-sexual manner. If the taunting has overt sexual overtures it is sexual harassment. Regardless, touching an employee on their buttocks is sexually offensive regardless of what the intention is. Touching a female’s breasts without her consent is sexual harassment regardless of what the co-employee is thinking. Making odd comments about the sexual properties of an employee’s bodies such as “Nice ass” is harassing and related to a sexual part of one’s body.
Contact one of our sexual harassment lawyers serving Moreno Valley and the rest of Riverside County from our office at 6809 Indiana Avenue Suite 130 in Riverside, California at 951-367-1000 if you have questions about whether conduct that happened to you at work is sexual harassment.
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Employers must take all reasonable steps necessary to prevent discrimination and harassment, California Government Code Sections 12940(j); Baker v. McKenzie, 63 Cal.4th 1128, 1157 (1998); Casenas v. Fujisawa, 58 Cal.App.4th 101 (1997); Doe, 50 Cal.4th 1038, 1053 (1996); Steiner v. Showboat Operating Co., 25 F.3d 1459, 1464 (1994); Fuller v. City of Oakland, 47 F.3d 1522, 1528 (9th Cir. 1995). If harassment has occurred, the duty to maintain a harassment-free work environment requires the employer to take remedial action not only to change the harasser's behavior, but to deter potential harassers from unlawful conduct, Intlekofer v. Turnage, 973 F.2d 773, 778 (9th Cir. 1992).
Reasonable steps to prevent discrimination and harassment from occurring include : 1) affirmatively raising the issue of harassment; 2) expressing strong disapproval of harassment; 3) developing appropriate sanctions against harassment; 4) informing employees of their rights and instructing them to report harassment, 2 California Code of Regulations 7287.6(b)(2)-(3).
Appropriate corrective action is some form of discipline, however mild, that contributes or eliminates the problem at hand, Intlekofer at 778. If the employer fails to take even the mildest form of discriminatory action the remedy is insufficient, Ellison, 924 F.2d 882. Action is corrective only if it contributes to the elimination of the problem at hand. Disciplinary measures are more likely to decrease the likelihood of repeated harassment than a mere request to stop the behavior, and so discipline is what a corrective action is, Intlekofer at 778.
The mere presence of an employee who has engaged in particularly severe or pervasive harassment can create a hostile working environment...To avoid liability....for failing to remedy a hostile environment, employers may even have to remove employees from the workplace if their mere presence would render the working environment hostile...When employers cannot schedule harasser to work at another location or during different hours, employers may have to dismiss employees whose mere presence creates a hostile environment, Ellison v. Brady, 924 F.2d 872, 883 (9th Cir. 1991).
"[T]he promptness adequacy of the employer's response to a complaint of harassment are fact questions for the jury to resolve, Howard v. Burns Bros, Inc., 149 F.3d 835, 841 (8th Cir. 1998).
"An employer may be held liable for 'negligence or recklessness in failing to respond to hostile work environment sexual harassment' Davis v. U.S.P.S., 142 F.3d 1334, 1342 (9th Cir. 1998) citing to Hirschfeld v. New Mexico Corrections Dep't, 916 F.2d 572, 577 (10th Cir. 1990). Employers are liable for failing to remedy sexually harassing environments they knew of or should have known of, Hirschtein v. New United Motor, 92 Cal.App.4th 994, 1007 (2001); Creamer v. Laidlaw Transit, Inc., 86 F.3d 167. 170-171 (10th Cir. 1996); Harrison v. Eddy Potash, Inc., 112 F.3d 1437, 1444 (10th Cir. 1997). Constructive knowledge of sexual harassment is imposed on employers if the harassment is pervasive, Huddleston v. Roger Dean Chevrolet, Inc., 845 F.2d 900, 904 (11th Cir. 1988); Varner v. National Super Markets, Inc., 94 F.3d 1209, 1213 (8th Cir. 1996); Farpella-Crosby v. Horizon Health Care, 97 F.3d 803 (5th Cir. 1996), and this determination is a question of fact, Reich v. Dept. of Conversation & Natural Resources, Alabama, 28 F.3d 1076, 1082 (11th Cir. 1994); Allen v. Tyson Foods, Inc., 121 F.3d 642 (11th Cir. 1997).
Failing to investigate, or repudiate the employee's conduct by redressing the harm done and punishing or discharging can cause an employer to be liable for punitive damages if their non-managerial agent committed an act of discrimination, Roberts v. Ford Aerospace, 224 Cal.App.3d 801, 274 Cal.Rptr. 139, 144 (2nd App. Dist. 1990).
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Bradley v. Dept. of Corrections, 71 Cal.Rptr.3d 222 (2008) requires that the employer's sexual harassment investigator must understand, and the investigation must ultimately, be aimed at 1) determining fault; 2) ensuring the claimant is safe from harassment; 3) to determine what steps are needed to stop the harassment, Id. Merely listening to the claimant is not enough, Id.
Employees who are fired for complaining of sexual harassment, or due to their participation in a sexual harassment investigation, may sue under the Fair Employment and Housing Act for the loss of in a their employment, California Government Code Section 12940(h).
Do not hold back facts if you are making a sexual harassment complaint. Provide as much information as possible, or you will later be accused of not mentioning a critical aspect of the sexual harassment that was perpetrated.
If you are involved sexual harassment investigation, be careful about naming witnesses. If you are not sure if somebody saw something, do not claim they are a witness. If there are witnesses who are ex-employees or family members be sure to tell the employer about these people, and offer access to any non-employees you have contact information for but your employer may not.
If you are involved in a sexual harassment investigation, be careful about naming witnesses. If you are not sure if somebody saw something, do not claim they are a witness. If there are witnesses who are ex-employees or family members be sure to tell the employer about these people, and offer access to any non-employees you have contact information for but your employer may not.
Sexual harassment cases dealt with in the work environment could become huge lawsuits and should not be taken lightly. Contact an experienced Bakersfield employment attorney today. Serving All Of Kern County Including: Arvin, Bakersfield, Lebec, Mojave, Ridgecrest, Taft, And Wasco.
Contact us, or call 1-877-525-0700 toll free to consult with an Employment Lawyers Group sexual harassment lawyer, supervised by Karl Gerber who will be the lead attorney on your case.