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Sexual Harassment
Many people have heard of sexual harassment cases, especially following the "Me Too" movement. But we find that many employees still do not know all the different ways that sexual harassment can happen, or what they can do to protect themselves.
This is a huge problem. Employees should understand their rights and legal options, especially in the confusing and often nerve-wracking situation of being sexually harassed at work.
Even worse, businesses often take advantage of employees who do not understand their rights when experiencing sexual harassment, and do everything they can to minimize the business's liability when something wrong has happened.
We cover a few topics relating to sexual harassment below, but please contact us for a confidential and no-pressure consultation, or consult with another attorney, as getting legal advice is generally the best option if you think you are experiencing sexual harassment at work.
Sexual Harassment in the Workplace
How to Spot Sexual Harassment
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Legal definitions of sexual harassment
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Examples of sexual harassment at work (generally speaking, if it feels inappropriate - it probably is)
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The many ways sexual harassment can begin
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What "grooming" means and how to spot it
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How sexual harassment can happen even when relationships start consensually or through "dating"
What You Can Do About Sexual Harassment
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How to make complaints to protect yourself
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What to do if your employer is going to start a "workplace investigation" into your sexual harassment complaints
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How to interact with human resources (spoiler alert: they are NOT your friends)
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When to look for an attorney... Generally, the sooner the better
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What do I need to pursue a settlement or lawsuit for sexual harassment?
What To Know About Sexual Harassment and the Law
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What are the different kinds of sexual harassment, legally speaking?
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What kinds of legal claims are related to sexual harassment
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The "Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act" of 2021
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Understanding "damages," which are used to determine and estimate settlement value or a future jury award
How to Spot Sexual Harassment at Work
Some forms of sexual harassment may seem obvious. Others, not so much.
Let's do a deep dive into all the ways that sexual harassment can happen, including after consensual "dating" situations.
Sexual Harassment 101:
An Overview of the Law
2 Types of Sexual Harassment Exist Under the Law
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"Work Environment" Harassment (also referred to as "Hostile Workplace" Harassment)
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"Quid Pro Quo" Harassment (which translates to "In Exchange For")
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This kind of harassment can be directed at you OR directed at others
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"Directed At You" Generally Means....
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You were subjected to harassing conduct through your workplace based on your gender, sex, or sexual orientation or gender identity
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This harassing conduct could reasonably be considered hostile, intimidating, offensive, oppressive, or abusive by someone who has your gender, sex, sexual orientation or gender identity
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This harassing conduct was by a supervisor, OR the business's supervisors, agents, or leadership knew OR should have known of the harassing conduct (this is why it can be important to make written complaints, as businesses often deny verbal complaints occuring)
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You were harmed (usually this means "emotionally distressed") by this harassing conduct
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"Sexual Favoritism" is a situation where employees are rewarded for having sexual interactions with a supervisor or superior of some kind in the workplace
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Having a sexually inappropriate and offensive workplace in general can also lead to legal claims, and can include things like sexually offensive / inappropriate displays or signs
Work Environment Harassment
Quid Pro Quo Harassment
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Quid Pro Quo means "in exchange for" and usually occurs when the harasser is in a position of power (such as a supervisor, boss, CEO)
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This kind of harassment involves "unwanted sexual advances" or "other unwanted verbal or physical conduct of a sexual nature"
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The person in power is basically offering employment benefits (promotions, raises) or threatening job security (termination, demotion) in exchange for giving them sexual favors, or being more receptive to their sexual or romantic advances
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This exchange can be explicitly stated or can be implied
Breakups Can Lead to Harassment
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Even if a relationship started off consensually or by "dating" or "sleeping with" a coworker or supervisor, if you communicate you want that romantic or sexual relationship to end - and they just won't stop making sexual or romantic advances towards you afterwards - then their comments or behavior can be sexual harassment in the workplace
Legal Disclaimer
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These are broad definitions, and are in NO way comprehensive when it comes to the laws that apply, and in NO way replace legal advice.
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Please consult with an attorney if you believe you may be experiencing sexual harassment in any way, and do not base your decision to reach out to an attorney or not on this overview.
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If what is happening to you feels wrong, it is best to go with your gut and reach out to us or another employment attorney in your area.
Some Examples of Sexual Harassment
Physical Touching
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Unwanted touching of your body, including your hair
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Pinching, patting, hugging, massaging, kissing, or brushing against your body
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Impeding or blocking movement, such as cornering you and not letting you pass by
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Groping your breasts, behind, hips, or touching you between your legs
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Sexual assault, rape or suspected date rape
Verbal Comments
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Sexually explicit jokes, slurs, innuendos, or insults
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Requests to go to dinner or on dates
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Requesting that you wear skirts or dresses, or change your hair or appearance according to their tastes
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Calling you at home to see what you're wearing (this is from a real case, believe it or not)
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Requests for pictures of you
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Comments about your appearance
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"Catcalling" or whistling suggestively
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Making comments about wanting to engage in sexual acts with you to others in the workplace
Texts and Emails
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Inappropriate written comments
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Sending sexually explicit emails, text messages, or social media messages
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Requesting pictures of you
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Sending nude or sexually explicit pictures to you
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Sending links to pornography
Workplace Displays
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Displaying sexually suggestive pictures, posters, signs, cartoons, or objects
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Playing pornography
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Having a sexually explicit background on a computer screen
Non-Verbal Gestures
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Leering, winking, or a coworker making sexual gestures with their hands or body.
Get Help
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If you have experienced anything on this list, or anything not on this list that feels inappropriate or "creepy," seeking out legal advice is generally best to see what your options are and to protect yourself if you are still working with your harasser
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Human resources ("HR") departments are generally there to protect the company - NOT necessarily the company's employees
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While it can be important to make complaints in writing to HR, interactions with them should be handled carefully (read more about this topic below)
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As a general rule, if it feels inappropriate - it probably is. Go with your gut, and seek out help. We know it can be nerve-wracking to try to stand up for yourself at work or to reach out to an attorney, but there is help out there.
The Many Ways Sexual Harassment Can Start
"Grooming" is something that sexual predators do over time to make their target more open to their advances. While it has been used in the context of child predators, this process has been identified in workplaces as well, especially when an unwanted sexual and/or romantic relationship is forced on an employee.
"Dating" or consensual romantic or sexual relationships can also lead to sexual harassment in the workplace. This generally happens after a "breakup" where an employee tells their coworker or supervisor they want the relationship to end. If the coworker or supervisor will not stop making romantic or sexual advances, that can become sexual harassment.
In the end, sexual harassment can start in many ways, and it is common for some people to feel embarrassment about some of the things that happened, especially if there were explicit pictures or text messages exchanged. You are not alone, and you have options when it comes to what you can do.
What You Can Do About Sexual Harassment
The Importance of Written Complaints
Not surprisingly, business representatives often say they "do not recall" receiving verbal complaints about an issue at work when facing possible legal repercussions for their actions. It can therefore be critical to any legal action to make complaints in writing to a supervisor, an HR department, or other "higher-up" in the company, and to keep as many copies in as many formats as possible of this written complaint.
A written complaint can be by email, by text, or some form that is given to you by your HR department. Even if you make a verbal complaint first, it is best to also put it in writing, even if it just with a "follow-up" text or email referencing the conversation and your concerns once again.
General Tips About What To Put In Your Complaint
Make it clear that you feel uncomfortable in this written complaint. If the harassing conduct is directed at you and explicitly sexual in nature, state that in writing.
If the harassing conduct is not a sexual and / or romantic advance towards you (such as a workplace display that is offensive) and you feel the harassing conduct is based on your gender, or sexual orientation, identity, or expression, put that in writing. That way, you are tying the harassing conduct in your complaint to a "protected characteristic" of yours, which can be key under the law for harassment claims of all kinds.
Keep Copies of Complaints
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Keep a copy of this written complaint, in multiple formats if possible.
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If it is a physical form, take a picture of it on your cell phone.
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If it is an email you wrote through your work email address, print out a copy OR take a picture on your cell phone OR forward it to your personal email account.
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If it is a text to your boss or supervisor, take a screenshot of the text and email it to yourself just in case.
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It can be critical in certain cases to have copies of these complaints. Some businesses will do everything they can to pretend they had no knowledge of harassment occurring in their workplace, even when they did, in fact, know what was happening.
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Even if you do NOT have a copy of a written complaint, you still likely have legal options. We have had cases where we argue that the supervisor or employer "should have known" that the harassment was occurring.
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But, if you can show the business did in fact know by showing a written complaint being sent, it can often streamline the process of negotiating settlement or proving your case.
**Legal Disclaimer**
Getting Legal Help is BEST Before Submitting A Written Complaint
This is in NO way a comprehensive overview. The best way to protect yourself is to consult with an attorney before writing a complaint, in order to make sure you are not weakening any legal action you may have to take against your employer in the future.
If you are facing a "workplace investigation" it is CRITICAL that you talk to an attorney before making statements of any kind or agreeing to an interview of any kind.
Please reach out to us or another employment attorney in your area as soon as possible for legal help if you are thinking of making a complaint, or you are facing a "workplace investigation" into complaints you have already made about sexual harassment.
Interacting With
Human Resources
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Workplace Investigations
Human Resource ("HR") departments exist to protect businesses and companies from liability. When something wrong has happened, they generally attempt to do everything they can to reduce the business's exposure to liability. This is their job.
Though they are surely nice enough people both at home and on the job, please remember they are not your friends in this situation. It is their job to protect the company they work for, especially in the face of any legal action. They will view any complaints of sexual harassment as a threat to the company, even if they say they are just trying to fairly assess the situation.
This means you should be extremely careful in how you interact with HR and in what you say to them. If you make a written complaint, this written complaint can later come into evidence.
The best way to know how to interact with HR when making a complaint about sexual harassment, or when facing a workplace investigation, is to TALK TO AN ATTORNEY IMMEDIATELY. Attorneys have an ethical duty to their clients, and even to potential clients, while HR does not have a duty to you.
WORKPLACE "INVESTIGATIONS"
Human resources will likely try to interview you and get you to say things that weaken your legal claims against the company whenever possible.
Human resources may also bring in attorneys or "third party investigators" at times. Third party investigators are often attorneys as well (commonly having a background in working as defense attorneys, i.e. lawyers specializing in representing companies to fight against an employee's sexual harassment claims). Attorneys have an ethical duty to protect the company they represent, especially when the company is retaining them and paying them to "investigate." They have no duty to protect you in any way as they do not represent you, even if they try to mislead you in that regard.
These "investigations" are generally designed to clear the company of liability in any way possible. The "investigators" are being paid by the company to do this. This "investigation" will not be fair to you. It is not an attempt to "get to the bottom of things." Any reports from these so-called "investigations" are pretty much guaranteed to find no wrongdoing by the company and / or the person within the company who has been harassing you.
This is something that, unfortunately, many employees do not realize until it is too late, and they have already fallen into a trap set by the company's HR or workplace investigators.
Time and time again, we have seen people trust human resources, company attorneys, or third party investigators and regret it. That being said, if you have already been speaking to HR, company attorneys, or investigators, you may still have legal options, but please contact an attorney as soon as possible before continuing any further discussions. You will likely need someone who is on your side when dealing with these sophisticated representatives of the company working against you.
Taking Legal
Action
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When to talk to an attorney
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What it is good to have when it comes to "evidence"
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What factors into negotiations for sexual harassment settlements
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Procedural aspects to sexual harassment lawsuits
When to Talk to An Attorney
Generally it is best to talk to an attorney as early as possible if you believe you are experiencing sexual harassment at work. Many people who experience sexual harassment have not been fired and are unfortunately still working with their sexual harasser, and for the company that is allowing them to be sexually harassed at work.
There are too many options legally to go into here. Many of these are up to the employee who is in this confusing and generally unnerving situation.
But here are some options that you can discuss with us or another employment attorney in your area:
An attorney can discuss what resolving the issue with your company may look like.
An attorney can give you pointers on how to make a complaint that leaves open the option of taking legal action later if the company does not do what is necessary to stop the sexual harassment from continuing.
An attorney can help you through a so-called "workplace investigation." They can help you prepare for an interview, and even attend any interview in order to help protect your interests, if you decide to attend an interview at all.
An attorney can help you figure out an "exit strategy" so you no longer have to work for a company that is allowing you to be sexually harassed, or alongside someone who is making you uncomfortable at work.
An attorney can help you take legal action against the company. An attorney can do this by negotiating a settlement -- if a company is open to that, and generally companies only do this if an employee has an attorney involved -- or by pursuing a lawsuit if settlement is not possible. There are lots of other options, such as mediation, as well, that you can discuss with your attorney.
Speaking with an attorney is generally the first step to fighting back against a harasser or a company that is allowing you to be harassed. We offer a confidential, free, no-pressure and no-obligation consultation with one of our attorneys, not an intake team. Please reach out to us or to another employment attorney in your area as early as possible if you believe you are experiencing sexual harassment, so that you understand your rights and legal options.
Good "Evidence" To Have (When Possible)
If you think you are experiencing sexual harassment, and may need to pursue legal claims of any kind in the future either through attorney-led negotiations, settlement, mediation, or a lawsuit, it is best to have as much documentation of what happened to you as possible.
Supervisors, HR departments, and companies sometimes have a habit of not remembering verbal complaints, or even losing complaints submitted in person. Do not rely on anyone to keep a copy of a written complaint for you.
Some businesses do not have an HR department, and sometimes the person who is supposed to deal with complaints is the one who is harassing employees. We have seen all kinds of business operations, and understand that sometimes making a "formal" written complaint can be difficult under certain circumstances.
It is important to document the harassment however you can. You can do this in messages to other "higher-ups" at the business, especially in those situations when submitting a complaint seems difficult, or even in written messages to people in your life such as your friends, loved ones, or significant others about distressing incidents that happened at work that day.
DOCUMENTATION OF HARASSMENT + COMPLAINTS
Documentation of the harassment can include screenshots of text messages, PDFs of emails (or forwarding emails from a personal email address), pictures of offensive workplace displays or signs, etc. The list goes on and on in the age of cell phones. As stated above, documentation can also include written messages you sent to people in your life about the harassment and how it upset you when it was happening.
Documentation of complaints can be incredibly important, especially when it is a coworker who is harassing you and not a supervisor. Often, when it is a coworker who is harassing an employee, companies will try to say that they did not know that any harassment was happening. In that case, having written complaints can devastate a company's attempt to avoid liability.
If you made a verbal complaint to a supervisor, or "higher up" of any kind at the company, you can reference that verbal complaint and what you said in a follow-up text message or email, just to make sure you have it in writing as well.
What Factors into Settlement Value or
Jury Awards
Every case is different, but here in an overview of certain factors that matter when pursuing a favorable settlement or jury award in sexual harassment cases.
Procedural Changes to Sexual Harassment Cases Since "Me Too"
While this topic may sound a bit boring to non-attorneys, recent changes to sexual harassment laws since "Me Too" have aimed to level the playing field between employees bringing sexual harassment lawsuits, and their powerful employers attempting to minimize exposure and liability however they can.
One critical change includes the "Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021" or the "EFAA" for short. This means that you can choose to go to Court rather than to arbitration. In general, you have a right to full discovery, a jury trial, and to an appeal when litigating in Court. Many believe that juries are more likely to give large awards in sexual harassment cases.
Another critical change is the fact that sexual harassment lawsuits generally cannot be dismissed on "summary judgment" or "summary adjudication." Summary judgment or adjudication is a process where a judge can keep you from having a jury trial in court for various legal reasons. In recent case law, it has been ruled that people bringing sexual harassment should get their day in court rather than face this form of dismissal.
While there have been numerous other changes in recent years, these are key factors that can make sexual harassment claims stronger, and businesses being sued for sexual harassment face significantly more risk in litigation because of these procedural changes. These aspects of litigation can therefore factor heavily into settlement negotiations if a person decides to pursue legal action for sexual harassment.
The Legal Claims
Sexual Harassment can also be pled with other kinds of legal claims, such as "retaliation" if an employee is punished for complaining about harassment in some way.
These additional legal claims, which you can discuss with your employment attorney if you pursue legal action, can also factor into settlement negotiations or the chances of a favorable jury award if you go to trial.
The Timing: Early Settlement or Negotiations
An early settlement, while it can still be large depending on the situation, may be less than a future jury award. It is a risk to believe a jury will give a Plaintiff any award at all, given juries can be unpredictable. But an early settlement generally happens when a business is trying to avoid the risk of a massive loss at a jury trial, and also avoid the costs of litigation (which can be substantial for businesses and would, of course, be in addition to any damages paid to the person who was harassed).
However, a business may decide to just "roll the dice" and see what happens in court if a settlement demand is too high based on the facts of the case. They are also assessing risk, if they are acting rationally - though it is important to note that not all businesses or their leadership act rationally in the face of sexual harassment allegations.
Calculations for early settlements are generally smaller than when negotiations happen later in the case. This is because litigation can be expensive and time consuming. For a settlement to make sense, it needs to cover the costs of litigation spent to date. If a settlement occurs after years of litigation, then the settlement has to be higher to recoup those costs.
However, many prefer early settlements (if they are possible) in order to avoid extensive, years-long litigation. Receiving money from a business that is giving it to you willingly to settle your claims, and has signed a settlement agreement, is also much more streamlined than going through a possible collections process.
Therefore, the timing of the negotiations also determines things like "settlement value." Your attorney will be able to discuss this in more detail with you depending on the circumstances of your case.
Understanding Damages
The term "damages" refers to monetary compensation, and the attempt to make up for the wrongs a person has suffered.
Sexual harassment cases are "civil" law, as opposed to criminal law. In criminal cases, the aim is to determine punishment for committing a crime, such as a fine or jail time. In civil cases, the aim is generally to compensate a person for what happened to them, generally by paying them a certain amount of money. It can be difficult to calculate an exact dollar amount for a person's experience (especially for things like their emotional distress), but this is how our justice system has attempted to help people who have been wronged in their employment.
There are different kinds of damages, and different ways that damages can be calculated. Damages can be approximated, which happens often when discussing and pleading "emotional distress" damages, or calculated, which can be the case in determining "lost wages." Having evidence of your damages can, unfortunately, be a key factor in attempting to approximate a favorable settlement or jury award for your case.
The more evidence of wrongdoing - especially shocking or extremely offensive wrongdoing - the more likely that a high damages calculation seems reasonable in settlement negotiations or for juries deciding an award.
EMOTIONAL DISTRESS DAMAGES
Generally, for sexual harassment cases, "emotional distress" damages are a key factor.
Emotional distress can be measured in many ways. Some examples include: treatment by a therapist or psychiatrist, receiving new prescriptions for medications related to depression, anxiety, trouble sleeping, or receiving increased doses for previously prescribed medications due to mental distress from the harassment.
These damages are inherently difficult to calculate. One jury may award millions while another may award $1. (And yes, that is something that has actually happened in real life.)
So, it is often helpful to have evidence of distress that can be shown through medical visits to psychiatrists or therapists, or through testimony about the impact the harassment has had on your emotional and mental state (by you, friends or loved ones in your life who witnessed the mental toll the harassment took on you, and professional experts or psychiatrists). Keeping messages you sent (to friends or loved ones or coworkers) when you were distressed over incidents of harassment can show contemporaneous emotional distress as well. Keeping messages you sent about the impact that the harassment is having on you can also be useful. Things like not being able to sleep or eat, having nightmares, experiencing anxiety attacks, crying in the bathroom at work -- these can all be used to show that the emotional distress you experienced due to the harassment was both real and severe.
While emotional distress damages are difficult to calculate or to predict when it comes to what a jury will award if you go to trial, they are generally considered one of the largest category of damages in sexual harassment cases.
OTHER TYPES OF DAMAGES
Lost Wages
If there was a termination, there can also be calculations for lost wages. There may be estimates, such as how long you would have continued to work in your job. Maybe you would have worked in your position with the company for three more years "but for" the harassment. This situation could be a retaliatory termination where you were fired for making complaints or resisting sexual advances, or a situation where you were forced to quit because you were so fearful of being sexually assaulted due to escalating harassment (which would be considered a "constructive termination").
Punitive Damages
If the employer acted in a way that was particularly egregious, there can also be punitive damages that are designed to punish a business. This is generally meant to deter future wrongdoing, and can be based on how profitable and/or large the business is. It is also another way a jury can give a favorable award in a sexual harassment case.
Attorneys Fees and Costs
Your attorney can seek compensation for the out-of-pocket costs for litigating your case, and compensation for the hours they put into the case. This category of damages can also put pressure on a business to settle a sexual harassment case earlier rather than later.
This is an extremely broad and cursory overview of damages. Your attorney, should you wish to retain one, can discuss these types of damages with you and how you can "plead" them in ways that are specific to your situation when pursuing legal action.
Getting Help
These laws and procedural considerations can be complicated, and this is only a broad overview of sexual harassment claims and litigation. Regardless, we hope that this overview has provided you with some sense of the law and what factors can play into sexual harassment claims, legally and practically.
Whether you contact our law firm or another employment attorney in your area, we suggest that you get legal help as soon as possible if you believe you are being sexually harassed at work. This can not only help stop the situation from continuing -- so that you no longer have to endure harassment at work -- but also protect your ability to pursue legal action against your sexual harasser and the company allowing you to be harassed.
No one should be forced to feel uncomfortable or scared going into work. Getting through the work day can be hard enough. If you believe you are being sexually harassed, you have the power to fight back. Contact our firm or another employment attorney in your area for more information, and most importantly, please stay safe.
CONTACT US
FOR A FREE
CASE CONSULT
OUR ADDRESS
Osprey Law, P.C.
5857 Owens Avenue
Suite 300
Carlsbad, CA 92008
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Tel: (760) 828-8086