A report from the University of California San Diego Health found that 86 percent of women in California (compared to 81 percent nationally) and 53 percent of men (compared to 43 percent nationally) report having experienced some form of sexual harassment in their lifetime, and three out of four gay and bisexual men faced aggressive sexual harassment compared to one out of three straight men. 

The United States Equal Employment Opportunity Commission (EEOC) reported that the agency received a total of 98,411 charges alleging harassment under any basis and 27,291 charges alleging sexual harassment between the fiscal year 2018 and fiscal year 2021, with #MeToo going viral in October 2017, leading to a 13.6 percent increase in sexual harassment charges as sexual harassment charges accounted for 27.7 percent of all harassment charges between the fiscal year 2018 and fiscal year 2021.

It can be extremely confusing for the average person to know how to properly respond to a case of sexual harassment, as many people will have fears about employment consequences for reporting incidents. All people in these cases should be quick to seek the help of Mara Law Firm because their California employment law attorneys have decades of experience handling these types of cases and know what it takes to help people succeed in proving their claims.

Types of Sexual Harassment

The California Fair Employment and Housing Act (FEHA) apply to public and private employers as well as labor organizations and employment agencies, making it illegal for employers of five or more employees to discriminate against applicants and employees because of a protected category, or to retaliate against them because they have asserted their rights under the law. The FEHA also prohibits harassment based on protected categories against employees, applicants, unpaid interns, volunteers, or contractors, and harassment is prohibited in every workplace, even those with fewer than five employees.

Some of the most common kinds of sexual harassment claims include, but are not limited to:

• Unwelcome sexual advances
• Making conditions of employment or advancement dependent on sexual favors
• Requesting sexual favors
• Making sexual propositions
• Physical acts of sexual assault
• Verbal harassment of a sexual nature, including jokes referring to sexual acts or sexual orientation
• Expressing a desire for sexual contact or conduct
• Displaying sexual visuals
• Unwanted touching or physical contact
• Using sexually-explicit language
• Comments about a person’s body, figure, and sexual orientation
• Discussing sexual relations, stories, or fantasies at work, school, or in other inappropriate places
• Telling sexual jokes
• Employers making benefit promises in order to receive sexual favors
• Feeling pressured to engage with someone sexually
• Commenting on a person’s appearance
• Physical touching and preventing people from moving
• Exposing oneself or performing sexual acts on oneself
• Speaking in a sexual tone
• Retaliation and threats based on an individual’s denial of sexual advances
• Unwanted sexually explicit photos, emails, or text messages.
• Using sexually-suggestive nicknames or terms of endearment
• Derogatory jokes, comments, and epithets

Sexual Harassment Liability

An employee in California who commits sexual harassment will be personally liable for a victim’s damages regardless of whether an employer knows about or should have known about sexual harassment. While sexual harassment attorneys can pursue damages against employees who commit sexual harassment, many employees may lack the financial resources necessary to appropriately compensate victims for their damages. 

Since this scenario is so common, a sexual harassment lawyer can help a person ensure that they include all individuals and entities potentially responsible for harassment in any lawsuit. An employer can be held strictly liable if sexual harassment of a victim was perpetrated by a supervisor or an employer themselves. 

In other words, an employer can be liable for a victim’s damages regardless of whether an employer knew or should have known about sexual harassment and regardless of whether they took any kind of corrective action. An employer will also be liable for damages stemming from sexual harassment when they knew or should have known about harassing behavior but failed to take the appropriate steps or corrective actions to remedy the issue. 

Before a person can bring a lawsuit for sexual harassment, they need to file a complaint with the California Department of Fair Housing and Employment (DFEH). The administrative complaint will allow the DFEH to conduct its own investigation into the claim to decide if they are going to take action against an employer. 

When DFEH declines to bring a civil action within 150 days of a filing of a complaint, then a person can request a right-to-sue notice. After obtaining this notice, a person will have the right to file an independent lawsuit in court.

Possible Damages for Sexual Harassment Claims

People who file sexual harassment actions in California may be able to recover many different kinds of damages. Some of the most common kinds of damages in these cases include:

• Loss of compensation or lost wages when a person’s employment is terminated for reporting sexual harassment
• Emotional damages or emotional distress compensation, which can compensate people for depression, insomnia, fear, mental anguish, anxiety attacks, or loss of appetite
• Reinstatement of employment
• Mandated changes to an employer’s policies and practices
• Reasonable attorney’s fees and costs

California Civil Code § 3294 establishes that punitive damages can also be awarded in cases in which an employer engages in oppression, fraud, or malice. Oppression is defined as being despicable conduct subjecting a person to cruel and unjust hardship in conscious disregard of their rights, fraud means an intentional misrepresentation, deceit, or concealment of a material fact known to an employer with the intention on the part of the employer of thereby depriving a person of property or legal rights or otherwise causing injury, and malice is conduct that is intended by an employer to cause injury to a person or despicable conduct that is carried on by an employer with a willful and conscious disregard of the rights or safety of others.

Punitive damages are generally quite rare, but they are possible in cases of particularly egregious conduct by employers. Many sexual harassment cases tend to settle confidentially, so it is often difficult to know exactly how much each case settles for.

Time Limits for Sexual Harassment Claims

Governor Gavin Newsom signed two important bills into law on October 10, 2019, that impacted sexual harassment cases. Assembly Bill No. 1619 (AB 1619) set the time for the commencement of a civil action for recovery of damages suffered as a result of sexual assault where the assault occurred on or after a person’s 18th birthday, to the later of within 10 years from the date of the last act, attempted act, or assault with intent to commit an act, of sexual assault by an offender against a person or within three years from the date the plaintiff discovers or reasonably should have discovered that an injury or illness resulted from an act, attempted act, or assault with intent to commit an act, of sexual assault by an offender against a person.

Assembly Bill No. 9 (AB 9) noted that existing law authorized a person claiming to be aggrieved by an alleged unlawful practice to file a verified complaint with DFEH within one year from the date upon which an unlawful practice occurred, but the bill extended the period to three years for complaints alleging employment discrimination. When a person is filing a claim with the EEOC, they will only have six months.

People need to understand that the statute of limitations on sexual harassment claims can prove to be very short for most people, so all individuals who believe they have sexual harassment cases will want to retain legal counsel as soon as possible to ensure that they are able to take the appropriate action in their cases. The EEOC may extend the statute of limitations to 300 days when a person has both EEOC and the DFEH claims.

Famous Sexual Harassment Cases

Barnes v. Train (1974) is largely considered to be the first sexual harassment case in the United States, with Paulette Barnes, a Black woman who was a payroll clerk for the Environmental Protection Agency (EPA), bringing the case after losing her job for refusing the advances of a male supervisor. While the case was dismissed, it was appealed in Barnes v. Costle, 561 F.2d 983 (D.C. Cir. 1977), and the United States Court of Appeals for the District of Columbia Circuit reversed an order of the district court awarding a summary judgment to the appellee on the ground that Title VII of the Civil Rights Act of 1964 did not offer redress for the appellant’s complaint that her job at the EPA was abolished because she refused her male superior’s sexual advances.

Williams v. Saxbe, 413 F. Supp. 654 (D.D.C. 1976) was the first case in a United States District Court to establish that quid pro quo sexual harassment constituted sex discrimination under the Civil Rights Act of 1964, as a male supervisor retaliated against Diane R. Williams by firing her for refusing to have sex with him. The United States Court of Appeals for the District of Columbia Circuit concluded that it was sex discrimination when a condition of employment was to submit to the sexual advances of a superior and the fact that William B. Saxbe only required women to submit to advances created an artificial barrier to employment for one gender but not the other.

Meritor Sav. Bank v. Vinson, 477 U.S. 57, 106 S. Ct. 2399 (1986) was the first United States Supreme Court case to recognize sexual harassment as a violation of Title VII. Whereas the EEOC only had about 10 sexual harassment cases reported per year before this decision in 1986, that figure quickly ballooned to 624 the following year and several thousand by the 1990s.

Jenson v. Eveleth Taconite Co., 130 F.3d 1287 (8th Cir. 1997) was the first sexual harassment case to be given class action status. Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) were cases in which the United States Supreme Court held that employers could be liable for supervisors creating a hostile work environment for employees.

Contact Our San Diego Sexual Harassment Attorney Today

California employment attorney David Mara has obtained millions of dollars for his clients and is a member of the American Association for Justice, Consumer Attorneys of California, California Employment Lawyers Association, Consumer Attorneys of San Diego, and San Diego Bar Association who is admitted to the United States Court of Appeals for the Ninth Circuit, United States District Court for the Northern District of California, United States District Court for the Eastern District of California, United States District Court for the Central District of California, and United States District Court for the Southern District of California. Our firm can represent you on a contingency fee basis, which means that you will not have to pay us anything unless we win or settle your case.

Mara Law Firm knows how frightening sexual harassment cases can be for most people, but we will work closely with you throughout your case so you can get the legal help you need to determine the best avenues to pursue. You can call (619) 648-2550 or contact us online to schedule a free confidential consultation.