Create a Workplace Free of Sexual Harassment

This information is not legal advice; if you have legal questions please consult an attorney which can be found on our resources page.

SEXUAL HARASSMENT

It is unlawful to harass a person (an applicant or employee) because of that person's sex. Harassment can include sexual harassment or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature. Harassment does not have to be of a sexual nature, however, and can include offensive remarks about a person’s sex. For example, it is illegal to harass a woman by making offensive comments about women in general.

People of any sex or gender can be both the victim and the harasser, and the victim and harasser can be the same sex or gender. The harasser can be the victim's supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.

Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).

Definition of Sexual Harassment

The Fair Employment and Housing Act defines harassment because of sex as including sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions.

The Fair Employment and Housing Commission regulations define sexual harassment as unwanted sexual advances, or visual, verbal or physical conduct of a sexual nature. This definition includes many forms of offensive behavior and includes gender-based harassment of a person of the same sex as the harasser.

There are two categories of sexual harassment: quid pro quo and hostile environment. Understanding the differences in the two categories is important because they have different liability implications.

1. Quid pro quo harassment occurs when submission to sexual conduct is made a condition of employment benefits.

2. Hostile work environment sexual harassment occurs when the sexually harassing conduct is so severe or pervasive as to create a hostile, intimidating, offensive work environment.

The following is a partial list of violations:

  • Unwanted sexual advances
  • Offering employment benefits in exchange for sexual favors
  • Making or threatening reprisals after a negative response to sexual advances
  • Visual conduct: leering, making sexual gestures, displaying of suggestive objects or pictures, cartoon or posters
  • Verbal conduct: making or using derogatory comments, epithets, slurs, and jokes
  • Verbal sexual advances or propositions
  • Verbal abuse of a sexual nature, graphic verbal commentaries about an individual's body, sexually degrading words used to describe an individual, suggestive or obscene letters, notes or invitations
  • Physical conduct: touching, assault, impeding or blocking movements

Are you being sexually harassed in the workplace?

  • Have you been subjected to unwanted sexual comments, jokes, innuendoes or gestures?
  • Are you pinched, patted, or touched in a sexually offensive manner without your consent?
  • Are you offered promises of a promotion if you perform a sexual favor?
  • Are you considered humorless because you don't laugh at sexual jokes?
  • Do you receive explicit requests to disrobe?
  • Are you required to wear sexually revealing uniforms in order to keep your job?
  • Are you called "baby", "sexy", "honey", etc., and feel uncomfortable?
  • Do you receive unwelcome, offensive telephone calls at home or at work?
  • Are you exposed to sexually suggestive pictures or pinups at work?
  • Have you personally witnessed the sexual harassment of others in your immediate work environment?
  • If you have complained about being sexually harassed, have you been involuntarily transferred to another location or otherwise treated in a fashion you consider retaliatory?
  • Are you experiencing any notable changes in your work environment due to your refusal to comply with the harasser's sexual demands?
  • Has your refusal to comply with the sexual harasser's demands resulted in racist remarks or discrimination based on race, ethnicity or sexual orientation?
  • Are you being sexually taunted because of your actual or perceived sexual orientation?

If you answered "yes" to any of the above questions, you may be a victim of sexual harassment. You can take action, and there are people and organizations available to assist you.

Sexual Harassment: Your Feelings Are Important

  • People who have been sexually harassed experience many different feelings including anger, humiliation, anxiety, guilt and/or depression. Your feelings are important.
  • Trust your feelings. If you are being sexually harassed, the first step is to take yourself seriously. Remember, you do have options.
  • It's okay to feel angry. Use your anger constructively to develop a strategy to help remedy your situation.
  • Take one step at a time. It's easy to feel overwhelmed.
  • Some forms of sexual harassment may encompass stereotypes about lesbians or people of color. Keep in mind that harassment based on such stereotypes may still be a form of sexual harassment.
  • If you are frightened by your harasser's possible actions, take those feelings seriously. Do not ignore these feelings. If you feel threatened, you need to take action.
  • If you are feeling emotionally distressed, it may help to talk about your feelings. Seek emotional support and validation, as well as feedback from people you trust. Talking to a friend or a counselor might help you figure out what options you have and what you need to do for yourself.
  • It is common to experience physical symptoms caused by harassment such as headaches, loss of appetite, gastrointestinal disorders, weight loss or gain, inability to sleep, and crying spells. Take care of yourself and seek medical attention if necessary.

Find out what resources exist in your area. Call your local Women's Commission, your union or other advocacy organizations in your area. (See our Resources Page)

Steps to Take Against Sexual Harassment

Remember that each situation is different, and you should take the steps that make sense in your case.

1. Consult your employee handbook or policies. If your employer has a sexual harassment policy in place, follow it. Put complaints in writing. Take notes on the harassment and be specific in your details — note the time and place of each incident, what was said and done, and who witnessed the actions.

2. If you feel safe speaking directly to the person harassing you, take these steps:

  •  Explain what behavior is bothering you. Name the behavior and be specific.
  •  Tell the harasser that their attention or behavior is bothering you.
  •  Ask the harasser to stop the behavior.

3. Tell your supervisor about the behavior and the steps you have taken to address it. If you do not feel comfortable speaking directly to the person harassing you, go directly to your supervisor or human resources department.

4. File a complaint with the Equal Employment Opportunity Commission. If you believe you have a Title VII claim, you have the right to file a discrimination complaint with the EEOC, the federal agency charged with enforcing many anti-discrimination laws. But don’t wait to file your complaint! In most cases you have 180 days — that’s six months — from the date of the discriminatory activity to file a discrimination charge with the EEOC in order to preserve your rights. You do not need an attorney to file a complaint with the EEOC. The EEOC’s website offers instructions on filing a charge.

Employer Liability for Harassment

The employer is automatically liable for harassment by a supervisor that results in a negative employment action such as termination, failure to promote or hire, and loss of wages. If the supervisor's harassment results in a hostile work environment, the employer can avoid liability only if it can prove that: 1) it reasonably tried to prevent and promptly correct the harassing behavior; and 2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer.

The employer will be liable for harassment by non-supervisory employees or non-employees over whom it has control (e.g., independent contractors or customers on the premises), if it knew, or should have known about the harassment and failed to take prompt and appropriate corrective action.

When investigating allegations of harassment, the EEOC looks at the entire record: including the nature of the conduct, and the context in which the alleged incidents occurred. A determination of whether harassment is severe or pervasive enough to be illegal is made on a case-by-case basis.

If you believe that the harassment you are experiencing or witnessing is of a specifically sexual nature, you may want to see EEOC's information on sexual harassment.

Strategies for Prevention

There are a number of steps that you can take to reduce the risk of sexual harassment occurring in your workplace. Although you may not be able to take all of the steps listed below, you should take as many of them as you can.

  • Adopt a clear sexual harassment policy. In your employee handbook, you should have a policy devoted to sexual harassment. That policy should:

  1. Define sexual harassment
  2. State in no uncertain terms that you will not tolerate sexual harassment
  3. State that you will discipline or fire any wrongdoers
  4. Set out a clear procedure for filing sexual harassment complaints
  5. State that you will investigate fully any complaint that you receive
  6. State that you will not tolerate retaliation against anyone who complains about sexual harassment

  • Train employees. At least once a year, conduct training sessions for employees. These sessions should teach employees what sexual harassment is, explain that employees have a right to a workplace free of sexual harassment, review your complaint procedure, and encourage employees to use it.

  • Train supervisors and managers. At least once a year, conduct training sessions for supervisors and managers that are separate from the employee sessions. The sessions should educate the managers and supervisors about sexual harassment and explain how to deal with complaints.

At the first sign of sexual harassment:

  • Take all incidents seriously. All complaints must be addressed. The complainant's charges should be received without making immediate judgments.
  • Document the complaint with dates, times, places, names and quotes (even if you are not the immediate supervisor).
  • After hearing the complainant's story, repeat relevant facts so that the complainant can correct any mistakes and can be assured that the incident has been understood properly. Ask the complainant if there is anything that you forgot to ask or they wish to include.
  • Discuss alternatives with the complainant. Tell the complainant how and when you intend to follow up with the complaint and thank them for coming forward.
  • If appropriate, explore the possibility of moving the alleged harasser out of the complainant's work site. The complainant however, should not be involuntarily transferred.
  • Report the information to the appropriate manager, sexual harassment counselor or EEO officer.

Investigate the complaint:

  • The appropriate manager or sexual harassment committee member must meet with the alleged harasser and any identified or possible witnesses.
  • Document the meeting. Make it clear that harassment and retaliation of any kind will not be tolerated and can expose the employer and the harasser to legal liability.

Final action:

  • If the appropriate manager determines sexual harassment has occurred, the company must take immediate, appropriate corrective action in the following forms: an order to STOP; a warning that violations will be punished; a verbal or written reprimand; suspension with or without pay; and/or discharge.
  • At this time, it is advisable to reissue the organization's sexual harassment policy and conduct sexual harassment training for all employees.

Be aware:

  • Employees have the right to file a charge of discrimination with local, state and/or federal government agencies, or to file a civil lawsuit.
  • It is to the employer's advantage to handle the complaint internally before it further escalates into a formal proceeding. Sensitivity and timeliness are essential in handling complaints effectively.
  • It is important for the employer to follow up after the complaint has been handled to ensure that the harassment has stopped and there are no retaliatory actions taken against the complainant.
  • Reporting sexual harassment is often a very difficult experience. Be aware that recipients may not be able to recognize the incident as one of sexual harassment until after a considerable amount of time has passed.

LAWS AND REGULATIONS

Federal Law

Federal law forbids sexual harassment under Title VII of the Civil Right Act of 1964. Title VII covers employers who employ, or have employed, 15 or more employees for each working day in 20 or more calendar weeks in the current or preceding calendar year.

State Law

Sexual harassment is illegal under the California Fair Employment and Housing Act. Sexual harassment protections extend to applicants, employees, unpaid interns, professional relationships and independent contractors.

California’s Fair Employment and Housing Council adopted amendments to its Fair Employment and Housing Act (FEHA) regulations. These amendments have been in effect since April 1, 2016, and reinforce state law that it’s an employer’s affirmative duty to take reasonable steps to prevent and promptly correct discriminatory and harassing conduct. The Fair Employment and Housing Council's website has the text of the amendments, along with the Council's statement of reasons for proposing the amendments.

Among other regulatory updates, such as new obligations for mandatory supervisor training and new definitions of gender expression/identity, the amended rules now require all California employers to have a written discrimination, harassment and retaliation prevention policy that includes specific provisions. In addition to creating a prevention policy, employers must continue to distribute the mandatory sexual harassment pamphlet to all employees, as required by existing law (2 Calif. Code of  Regs. sec. 11023(b)).

Local Law

Sexual Harassment San Francisco Policy (Administrative Code Sec. 16.9-25)

SEXUAL HARASSMENT CASES

Recent Supreme Court Hearing

A Supreme Court’s decision in June of 2013 in the case of Vance v. Ball State University had effects on protections for employees facing harassment in the workplace. Previously, there were strong protections from supervisor harassment for employees because supervisors have authority over employees and thus there were greater legal obligations for employers, which provided incentives to prevent and remedy this type of harassment. The recent ruling impacts victims of supervisor harassment by essentially reclassifying as coworkers those lower-level supervisors who may not have the power to take actions like hiring and firing employees, but direct daily work activities. 

Federal Cases

Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) spells out the circumstances in which employers will be held liable for acts of sexual harassment carried out by their supervisory personnel. The Court rules that employers are liable when the sexual harassment has culminated in a tangible employment action directed against the harassed employee (i.e., employee is terminated or demoted after rejecting a supervisor's sexual advance). The Court further rules that employers are permitted to establish an affirmative defense to the claim, if it can show no tangible action was taken against the harassed employee and two additional elements: (1) the employer had communicated and established an effective procedure for employees to seek redress from sexual harassment; and (2) the harassed employee failed to take advantage of this procedure. If an employer can show all of these elements, then it will not be held responsible for the sexual harassment by its supervisory personnel.

Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998) unanimous Supreme Court rules that sex discrimination consisting of same-sex sexual harassment is actionable under Title VII. The Court reiterates that the plaintiff must prove that there was discrimination because of sex and that the harassment was severe.

In Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) the Supreme Court rules that in a sexual harassment case, the plaintiff does not have to prove concrete psychological harm to establish a Title VII violation.

Meritor Savings Bank v. Vinson, 477 U.S. 67,106 S. Ct.2399 (1986). The United States Supreme Court states that sexual harassment is actionable under Title Vll and that an employer may be liable for sexual harassment even when the victim suffers no tangible or economic loss. An employer may be liable where sexual harassment is so severe or pervasive that it creates a hostile or abusive work environment.

Intlekofer v. Turnage, 973 F.2nd 773 {9th Cir. 1992) The Ninth Circuit held that employers are required under Title Vll to take steps, including disciplinary action against a harasser, to ensure a prompt and effective end to workplace sexual harassment. If the action taken by the employer to correct the harassing behavior is untimely and/or ineffective, the employer may be held liable.

Ellison v. Brady, 924 F.2d 872 (9th Cir. 1991). In this case, a female employee received strange love letters from a male coworker who repeatedly asked her to go to lunch or for a drink. The Ninth Circuit held that the severity and pervasiveness of sexual harassment should be evaluated from the point of view of a "reasonable woman." Where a "reasonable woman" would consider the conduct sufficiently severe to create an abusive working environment, a violation of Title Vll has occurred.

Priest v. Rotary, 98 F.R.D. 755 (1983). The court held that an employer accused of sexual harassment was barred from inquiring into the complainant's sexual history, including the name of each person with whom she had sexual relations in the past ten years.

Miller v. Bank of America, 600 F.2d 211 (9th Cir. 1979). In this case, a male supervisory employee fired a female subordinate employee after she refused his demand for sexual favors. The Ninth Circuit held that the employer could be liable for such actions by the supervisor even though the employer had a Policy against such behavior.

California Cases

Vinson v. Superior Court, 43 Cal.3d 833,740 P.2d 404,239 Cal.Rptr. 292 (1987). The court stated that a mental examination of the complainant is not justified where the complainant is not seeking mental or emotional damages but simply compensation for enduring an oppressive work environment. In any case, the employer may not inquire into the complainant's past sexual history and practices.

Fisher v. San Pedro Hospital, 214 Cal.App.3d 590, 262 Cal. Rptr. 842 {1 1989. Similar to federal case law, California prohibits sexual harassment resulting from an offensive or hostile work environment, even if the complainant suffers no tangible job detriment.

Rojo v. Kliger, 52 Cal.3d 65 (1990). The California Supreme Court recognizes that sexual harassment, whether public or private, raises a claim under the public policy of the State of California. Complainants need not resort to the Department of Fair Employment and Housing.

Visit the Sexual Harassment Resources page to find legal, technical, and other resources. For resources specific to employees of the City and County of San Francisco, visit the Discrimination and Sexual Harassment Information page.

 

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