Sexual Harassment

The Law Offices of M. Kelly Copenhaver

San Francisco Sexual Harassment Attorney

What Is Sexual Harassment?

The Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241 (July 2, 1964), was  outlawed discrimination based on race, color, religion, sex, or national origin.

            The Fair Employment and Housing Act (FEHA) defines sexual harassment as verbal, physical or sexual behavior directed at an individual because of his or her gender.  Cal. Gov't Code §12900 et seq.; Peralta Community College Dist. v. Fair Employment & Housing Commission, 52 Cal. 3d 40, 45 n.2, 276 Cal. Rptr. 114 (1990).  Sexual harassment consists of any unwelcome sexual advances, requests for sexual favors or other verbal or physical conduct of a sexual nature. Hostile work environment is the second category. Rieger v. Arnold, 104 Cal.App.4th 541 (2002). Sexual harassment is a form of sex discrimination under Article I, §8, of the California Constitution. Rojo  v. Kliger, 52 Cal. 3d 65, 73, 90, 276 Cal. Rptr. 130 (1990).

Current employees and job applicants are protected from sexual harassment. Cal. Gov't Code §12940(h); Doe v. Capital Cities, 50 Cal. App. 4th 1038, 1045, 58 Cal. Rptr. 2d 122 (1996). Additionally, an employee who was not the intended object of the harassment may have a harassment claim if that employee can establish that she personally witnessed the harassing conduct and that it permeated her immediate work environment. Fisher v. San Pedro Peninsula Hosp., 214 Cal. App. 3d 590, 611, 262 Cal. Rptr. 842 (1989). Same sex harassment is sexual harassment under the Fair employment and Housing Act. Sheffield v. Dept. of Social Services, __ Cal. App. 4th __, 2003 Cal. LEXIS 6174 (Aug. 21, 2003)

Federal law according to the Equal Employment Opportunity Commission (EEOC) states that "unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitutes sexual harassment when submission to or rejection of this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance or creates an intimidating, hostile or offensive work environment."

Sexual harassment laws also apply to educational institutions or any educational or training program receiving federal financial assistance.

Title IX of the Education Amendments of 1972, 20 U.S.C. §1681 et seq. is a comprehensive federal law that prohibits discrimination or harassment on the basis of sex in any federally funded education program or activity, with a few exceptions, and to provide individual citizens effective protection against those practices. Many of these education program providers/recipients became subject to Title IX regulations when the Title IX final common rule was published on August 30, 2000.

Types of Sexual Harassment

Quid Pro Quo:  Behavior which involves express or implied demands for sexual favors in exchange for some benefit (ex: a promotion, a raise, a good grade or recommendation) or to avoid some consequence (ex: termination, transfer or negative evaluation) in the workplace.

Hostile Work Environment:  Unwanted verbal or nonverbal conduct which creates an intimidating, hostile, or offensive working environment. For example, touching, sexual remarks about a person's clothing, body or sexual relations, repeated requests for a date, conversations or jokes of a sexual nature, the display of sexually explicit materials or graffiti.

Harassment on the Basis of Sex includes, but is not limited to, the following:

• Verbal Conduct:
  • Epithets (nicknames or labels)
  • Derogatory or suggestive comments or slurs
  • Humor or jokes about sex
  • Direct or implied threats
• Physical Contact:
  • Assault
  • Impeding or blocking movement
  • Physical interference with normal work or movement
  • Touching, hugging or kissing
  • Forced sexual contact
• Other:
  • Leering, staring suggestively
  • Making obscene gestures or exposing oneself
  • Displaying sexually objective material; signs, photographs, cartoons.

*Note:  The harasser can be anyone including a supervisor, co-worker, person representing the employer, or a non-employee.

What do you do first if you are sexually harassed?

• Seek a method of ending the harassment. Begin by asking the offender to stop.
• Report the offenses to your employer.
• Take detailed notes and either keep, copy or photograph offensive material.
• Keep copies of your employment evaluations to note any changes in evaluations after you reported the offenses to your employer.
• Work with your employer to investigate and resolve the issue.  

What do you do if you are unable to resolve the issue?

If all attempts to resolve the issue with your employer fail, you may decide to file a complaint with either the EEOC or with a state agency, ordinarily within one year of the incident.

If you think you are being harassed, contact us to discuss your legal remedies.

Court decisions may appear to be inconsistent due to interpretation of the meanings of such things as an 'unwelcome advance" or "offensive material."

• Some factors considered are:
• Frequency and severity of the behavior
• Conduct or level of participation of the victim
• Size and nature of the employer's business
  
  

The Law Offices of M. Kelly Copenhaver
38 Miller Avenue, Number 299
Mill Valley, CA 94941
Phone (415) 388-5297
Fax (415) 474-3748
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