The news of Harvey Weinstein’s termination in the face of mounting sexual harassment allegations demonstrates no one is immune from being held accountable for their actions under the standards set forth in both federal and state laws prohibiting sexual harassment in the workplace. It does, however, beg the question, why was this not brought to light sooner? Were the alleged victims unaware of the law? Did they fear retaliation and irreparable damage to their career trajectories? Anyone who has been subjected to sexual harassment in the workplace has likely struggled with these same questions. No one will ever really know the reasons behind the delay but if the allegations currently circulating around Mr. Weinstein prove to be true, they are text book examples of sexual harassment.
There are two forms of sexual harassment under the California Fair Employment and Housing Act and Title VII the Civil Rights Act of 1964: (1) hostile work environment and (2) quid pro quo. Anyone can create a hostile work environment based on sex/gender, such as a co-worker, supervisor/manager, owner, or a third-party (i.e. customer/client). A hostile work environment exists when an individual is subjected to conduct, based on his/her sex/gender, which is severe or pervasive, and which a reasonable person would consider offensive. Quid pro quo, on the other hand, can only be committed by a person in a position of power, typically a supervisor or an agent of the employer. In such instances, the alleged harasser exploits his/her position and makes unwanted sexual advances or engages in unwanted verbal, physical or visual conduct of a sexual nature and conditions the terms of employment (i.e. being hired, benefits, wage increase) by word or through conduct, on the victim’s acceptance of the sexual advances or conduct.
The type of conduct that usually gives rise to a sexual harassment claim can also come in many forms. In today’s technology driven society, more sexual harassment claims stem from conduct engaged in via electronic communication, such as inappropriate text messages or emails. It can also exist when there are advances, conversations or inquiries of a sexual nature, even if an employee is not the person engaged in the conversation but forced to endure them.
Another component of sexual harassment that employees may not appreciate is the prohibition against same sex harassment, regardless of sexual desire. The California Legislature amended the FEHA effective January 1, 2014 to provide an employee need not show the alleged harasser’s conduct was motivated by sexual desire. Sexual harassment is often motivated by hostility toward an individual, which is more common in same-sex harassment cases. In such instances, the harassment may appear similar to bullying conduct.
Although it is often difficult and intimidating, employees should immediately complain about workplace harassment to their supervisor, human resources department, or another responsible manager. If your employer does not immediately and seriously take action against workplace harassment, you should immediately contact an experienced employment attorney in Orange County.
If you have questions about workplace harassment or other employment issues, please feel free to contact one of the experienced employment lawyers at Ares Law Group, P.C. Their unique backgrounds, spreading over 30 years of combined experience, the attorneys at Ares Law Group, P.C. provide clients the experience they need, with the attorneys they want. “Se habla Español.” Call us today for a free consultation (949) 629-2519.