A hostile working environment can be a form of sexual harassment, which is illegal sex discrimination under Title VII federally and under the Fair Employment and Housing Act (FEHA) in California. However, many companies don’t know how to protect employees from sexual harassment and many people do not understand exactly what do and do not constitute a hostile work environment under the law, understandable given the complexities of legal matters. Importantly, hostile conduct does not necessarily need to be sexual in nature to be considered as creating a hostile work environment and thereby a form of unlawful sex discrimination. In fact, there are many cases where this idea has been upheld. If any of the following scenarios sound familiar to you, you may be a victim of sexual harassment. If so, consider speaking with a discrimination attorney to discuss your rights.

1. Gregory v. Daly
   In this case, After Theresa Gregory talked to a sexual harassment lawyer she alleged that her executive director subjected her to sexual ridicule, advances, and intimidation. Additionally, after she complained, he punished her further by undermining her ability to complete her work, depriving her of job duties and salary increases, and terminating her in the end. Initially, her case was dismissed due to the defense that the complaint was “nothing more than accusations of demeaning comments,” [internal quotes omitted] which essentially pointed to a lack of connection between the plaintiff’s sex and the hostile conduct. The Second Circuit Court of Appeals did not agree, however, saying that a work environment can be considered hostile (and thereby a form of sex discrimination) even when the conduct lacks a sexual component or explicit reference to the sex of the victim. They discussed the need to look at the entirety of the evidence and said that the “sex-based character of much of Daly’s behavior permits the inference that the remainder of his harassing conduct was also due to Gregory’s sex.” In other words, just because certain incidents in isolation might not appear to be sex-based discrimination, taken together, they can be inferred to be related to sex.
2. Smith v. Sheahan
   In Smith v. Sheahan, Valeria Smith was violently assaulted by a fellow guard, Ronald Gamble, at a county jail. This was preceded by unpleasantness towards his female colleagues generally. While Smith complained internally, little was done by the department to rectify the wrongs. Due to the inaction of the Sheriff’s Department after her complaints, after a free consultation with a discrimination attorney Smith filed a lawsuit for sex discrimination in the form of a hostile work environment under Title VII. The district court initially ruled that the harassing behaviors were too isolated to be considered sex discrimination under Title VII, but the Seventh Circuit disagreed. To show that Gamble’s actions were not random violence and were instead motivated by the sex of his victims, Smith presented “me too” evidence, providing affidavits from six other women at the county jail that showed Gamble’s pattern of offensive behavior with female coworkers. For instance, one woman described two incidents with Gamble, one when he made sexual comments about her body while scanning her at the jail’s entrance; when she objected to this, he became hostile and called her a “bitch,” and coworkers had to intervene to prevent escalation. In the other incident, Gamble made a demand without proper authorization and when refused, he again became hostile and called her a “bitch,” going so far as to threaten to “kick [her] ass.” Again, another officer had to intervene and try to calm down Gamble. While this incident was reported, nothing was done about it. Together, there were seven incidents where Gamble became verbally abusive and threatened physical assault, five of which were reported. When Smith filed a criminal complaint against Gamble and he was found guilty of criminal battery, the Sheriff’s Department promoted him. More than that, they effectively demoted Smith by transferring her to an undesirable position. Fortunately, the Seventh Circuit found that Gamble’s violent assault of Smith, even though it was not sexual assault, could qualify as an action that created a hostile work environment given the broader context of his patterned negative attitude towards women.
3. EEOC v. National Education Association, Alaska
   In a similar case, EEOC v. National Education Association- Alaska, the EEOC filed a case of sex discrimination on behalf of three women whose manager, Thomas Harvey, abused them daily. Harvey screamed at female staff with little or no provocation, often employing profane language and castigating them publicly. Additionally, he intimated the women physically by doing things like sneaking up on them to watch them work without reason and shaking his fists at them while within striking distance. They feared he might attack them. One woman described working with him as feeling like “working with a ticking time bomb” that “raises the hairs on your neck because you just don’t know what you’re going to get.” Moreover, although high up management officials knew about the harassing conduct, no action was taken to stop it and in fact, Harvey was actually promoted. Initially, the case was dismissed because the behavior was deemed to be not overtly sexual and thereby not sex-based harassment. As in the aforementioned cases, the Court of Appeals, this time the Ninth Circuit, disagreed. The Ninth Circuit said harassing behavior need not be motivated by lust or blatant misogyny to be considered unlawful sex discrimination. In this case, the conduct was targeted at women specifically and therefore can be considered discriminatory. Ultimately, the case was settled for $750,000 in damages and an agreement by the defendants to expunge plaintiffs’ negative employment records associated with the discrimination as well as provide annual training to all employees about how to address issues of discrimination. In these three cases, the final say was that nonsexual hostile conduct can still create a hostile work environment for women. Such conduct can include verbal abuse (e.g. calling women “bitches”), violence, and intimidation, among other things if the behavior is targeted at people because of their sex. Of course, sex discrimination can happen to men or women, as well as to non-binary people. In any case, it is a serious matter that needs to be addressed promptly. If you believe you have suffered from sex discrimination in the workplace, if you have been retaliated against for protesting such discrimination, reach out to a discrimination lawyer and figure out what your options are. You may be entitled to monetary damages.

Sometimes a good training can prevent sexual harassment or discrimination in the workplace

Since 2017, “me too” has become an increasingly familiar term (and hashtag), one used to spread awareness of sexual harassment and assault, problems that are alarmingly widespread. By some estimates, over eight in ten women have experienced sexual harassment at some point in their lives (e.g., Stop Street Harassment). The “me too” movement encourages victims of sexual harassment or assault to come forward about their experiences in order to show the public just how pervasive these issues are in society. Proponents of the movement want to start a discussion, and they have succeeded in doing so on a national and even international level to an extent not previously seen. Fortunately, the idea of “me too” evidence has long been a part of the discussion in employment law.

In law, “me too” evidence refers to evidence that other people have experienced similar behavior as the plaintiff. Both federal law and California law allow for certain kinds of “me too” evidence in employment litigation. Such evidence helps establish things like motive or intent. In California, “me too” evidence may be more likely to be admissible thanks to cases like Pantoja v. Anton. The plaintiff, Lorraine Pantoja, sued for race and sex discrimination, and sexual harassment. She reported that her supervisor touched her inappropriately, as well as said and requested inappropriate things. Pantoja wanted to include the testimony of women in similar positions who had experienced similar things working under the defendant. In that case, it was ultimately decided that the “me too” testimony was admissible even though Pantoja had not personally witnessed how the defendant harassed the other women. The court decided that the evidence was useful to show that the defendant had discriminatory intent. Of course, this is not the only example where “me too” evidence is helpful in employment law.

The following list will show a few ways in which “me too” evidence can be useful, particularly in cases concerning sexual harassment and discrimination.

1. When one offender harasses multiple people

“Me too” evidence can be used in cases involving one harasser repeatedly engaging in actions that can be classified as sexual harassment. Such evidence is useful in a lawsuit because it goes towards establishing that there is a pattern of illicit behavior by the same person. Take the following hypothetical scenario as an example:

Maria has worked for several years as a physical therapist at a hospital. Recently, she was transferred to a different department. She has found herself very uncomfortable around her new supervisor, Jerry, who occasionally touches her inappropriately and makes jokes that she feels are demeaning to women. Maria is not sure what to do at this point and contemplates quitting. She mentions to a coworker what she’s been experiencing and it is brought to her attention that several other women in the office feel the same and have experienced similar behaviors from their supervisor, Jerry. Maria tells Jerry to stop his inappropriate behavior. Two weeks later, she is fired for ambiguous reasons.

In this scenario, if Maria decided to file a lawsuit claiming sexual harassment and unlawful termination, the testimony from other women in her place of work could bolster her case. The “me too” evidence, in this case, would help to demonstrate that Maria indeed experienced harassment due to her sex. The testimony of other women in her workplace also helps because Maria did not get the chance to file a written complaint to human resources about Jerry. When it comes to potential lawsuits, when possible, getting things in writing is ideal. Of course, that is not always possible and in such cases, it is helpful to have “me too” evidence.           

2. When the employer fails the employees

In the previous example, the potential plaintiff (Maria) and the other women in the office had qualms about the same person, their supervisor. However, that is not the only scenario in which “me too” evidence can be helpful.

In the workplace, employers have a responsibility to their employees that includes taking measures to prevent or stop sexual harassment. An example may best illustrate this idea:

Alex is an accountant at a large law firm. He dislikes his coworker David because David often tells him or shows him things that make him uncomfortable. For example, David often goes into detail about his dates and sexual activities with other people. Alex has asked David to stop, but David laughs it off, so Alex ultimately files a complaint with human resources. Unknown to Alex at the time, several other people who work at the company have filed complaints about a hostile work environment in the past few years, but nothing productive has been done to mitigate the threats. Alex is disappointed that, despite his complaint, nothing is done and David’s behavior does not change.

In this example, David could file a sexual harassment lawsuit against his company for failing to take action when notified of employees harassing their coworkers. More to the point, his lawsuit would have a greater chance of success because of the “me too” evidence, that is, the past written complaints of other employees. Even though the harasser varies in this case and is not necessarily an employer, the problem is that the company has failed to protect their employees from sexual harassment, so the “me too” evidence is still pertinent. Moreover, it does not matter that David did not know about the other complaints to human resources at the time; that is still evidence that can potentially be used to strengthen his case.

This example is reminiscent of the seminal California case of Weeks v. Baker & McKenzie (1998), wherein evidence that the employer was aware of an employee’s tendency to engage in harassing behaviors was ruled to be admissible. This evidence helped move the case to victory for the plaintiff, as it was deemed that the employer had not taken the proper steps to impede sexual harassment in the workplace.

3. When discriminatory intent is unclear

A third scenario in which “me too” evidence can be helpful is in cases of discrimination. In particular, such evidence can be very helpful in cases without clear evidence of the employer’s discriminatory intent, which is often difficult or impossible to gather. An example best illustrates this kind of case:

Viviane has worked as a salesperson at a car dealership for the past fifteen years. She has a good sales record and has only ever had a few write-ups for minor things. Most of her coworkers who have been there as long as she has have been promoted to more senior positions, which are more prestigious and include better pay. She does not understand why she has not been given the same opportunity and is bothered that there are so few women in leadership positions at his company, so she asks her boss about it. Unfortunately, her boss tells her they have no available senior positions. A few months after this, a male coworker who has worked at the dealership for five years is promoted to a senior position. Four women besides Vivian had been there longer than five years and had good sales records but had been passed up for the promotion.

In this example, the “me too” evidence is the four women other than Vivian who were in similar positions and had been denied promotions that were then given to less experienced male colleagues. This evidence helps show that what Viviane experienced was not idiosyncratic to her and was likely not because of Viviane as a person or worker but rather due to her gender. While no one at the company ever explicitly made any discriminatory remarks, these actions taken together help establish a pattern of events that can be most likely attributed to discriminatory intent.

Evidently, there are many ways in which “me too” evidence can be used to help bring people to justice. While such evidence is not admissible in every case, it is worth looking into if you have experienced similar situations to the ones described here. If you think you may have experienced sexual harassment or discrimination in your workplace, if it has resulted in loss of employment, a wrongful termination lawyer can help you decide what to do next.

3 Types of Sexual Harassment at The Workplace

Do you know visual harassment is a form of sexual harassment in the workplace?

California’s Constitution protects employees from being harassed within the workplace.  Employees and employers should be familiar with the Fair Employment and Housing Act and the California Government Code § 12940(j)(1), which makes it illegal to harass an employee. Harassment isn’t always physical or directed at a particular employee, but it may still offend that employee. Employees may be targets of harassment based on their gender, gender identity, how they express their gender, or based on an employee’s pregnancy, childbirth, or related medical conditions (Cal Gov Code § 12940(j)(4)(C)). However, sexual harassment remains the most prevalent in the workplace, above all other forms of harassment.

Sexual harassment can come from physical, verbal, or visual acts.

• Physical Sexual Harassment
• Verbal Sexual Harassment
• Visual Sexual Harassment

What is expected of the employer and or organization?

It is not always an employer who is sexually harassing the employee; sometimes, it can even be other employees sexually harassing an individual. However, this does not absolve the employer from being responsible for the occurrence of the harassment (Gov. C. § 12940(k)). Under FEHA regulations, employers are held accountable for not taking reasonable steps to prevent harassment from taking place. Employers took reasonable steps to ensure a safe and sexual harassment-free work environment, including providing prevention training. Employers are also expected to provide all employees with a copy of the California Fair Employment and Housing fact sheet upon being hired.

If an employee feels unsafe in their workplace, it is important to discuss their potential claim with a Sexual Harassment Lawyer.

1- Physical Sexual Harassment

Physical sexual harassment is the most obvious and well-known form of sexual harassment. It is exercised through unwelcome touching, such as rubbing up against a person, physically interfering with another’s movements, or preventing another from completing their work. Examples of unwanted touching would be if Employee A placed his arms around Employee B and Employee B felt uncomfortable with this and asked Employee A to stop. Another example would be if Employee A would block Employee B with his body from leaving the copy room, preventing Employee B from leaving that area without touching Employee A. An employee who has been subjected to physical harassment should discuss the matter with a Sexual Harassment Lawyer.

2- Verbal Sexual Harassment

Remarks or comments that are disrespectful insults or slurs may also be considered verbal harassment towards an individual. Under FEHA regulations, employees may identify their experience with verbal comments as “harassment” even through nicknames, labeling, or titles.  Examples of this would be employee A nicknaming employee B “Hot Stuff” or “Big Butt Belinda.” These kinds of nicknames or titles are offensive and comment on an individual’s anatomy, and also have a sexual connotation.

Although the workplace is a space for professionals employed by an organization, some employees today are subjected to feeling uncomfortable and endure unwelcome interactions while at their place of employment.  This can be distracting for a victim of this behavior, leaving him or her afraid to go to work.  The Fair Employment and Housing Act regulations recognize verbal harassment as a form of harassment and specify “romantic overtures” as a type of verbal harassment. But what exactly does that even mean? Put simply, this means romantic or flirtatious gestures from person A to person B to attempt to progress a platonic or formal relationship to a romantic level. These attempts, as in plural, are continuous and consistent.

To give rise to a claim, romantic or flirtatious remarks are still considered harassment whether the remarks are subtle or obvious. Subtle verbal overtures may be an invitation to go on a lunch or dinner date.  In this scenario, although an invitation to lunch or dinner may be a way in which friends interact with one another, depending on the particular circumstances this may be construed as harassment.  An obvious verbal overture may be a comment such as “We would make beautiful babies together” or “I wonder what it would be like if we dated”. These comments are obvious in an attempt to escalate a relationship into a romantic and or sexual realm.

An individual with this issue at work would need to contact a Sexual Harassment Lawyer to see if they have a claim against their employer.

3- Visual Sexual Harassment

The Fair Employment and Housing Act recognizes that sexual harassment may come in the form of visual harassment (2. Cal Gov. Regs. § 11019(b)(1)). At first glance, “visual harassment” may seem obvious because one individual is exposing themselves to another who does not appreciate the exposure. However, visual harassment comes in other forms that are not as blatant as perhaps a fellow employee exposing. Visual harassment can be demonstrated through cartoons or drawings considered offensive and/ or insulting to the victim. For example, a male employee may draw the character of a fellow female colleague in which her breast size is exaggerated. In that scenario, the female employee is being sexually harassed based on the visual of herself, which could be construed as sexual while also making her feel uncomfortable.

More commonly, in an age of technology, one employee showing a video or picture to another employee in the workplace in which that individual finds the visual offensive or insulting may be considered visual harassment even though it does not involve that particular employee being offended. For example, a female or male employee may show or attempt to show another coworker a video of herself or himself having sexual intercourse with his or her partner. In this scenario, although the video does not have anything to do with the employee shown in the video, this act is still considered visual harassment because it is sexual, offensive, and unwelcome.

Visual sexual harassment is also exercised through posters displayed within the workplace. Posters that would fall under this category of visual harassment, as mentioned above, would contain visuals that are offensive in their sexual nature and offend the particular individual.

Lewd gestures are also recognized under the Fair Employment and Housing Act as visual harassment. This could be interpreted to cover an array of acts being performed by one employee that offends another particular employee. For example, one employee may gyrate or perform pelvic thrusts toward another employee. Although the employee carrying out the act is not touching this particular employee, nor are they even conducting themselves in that way about that specific employee, it is still considered visual harassment.

An employee who is experiencing this type of visual harassment should call a Sexual Harassment Lawyer.

How to stop sexual harassment at work?

Do you know what is sexual harassment? And what to do to stop sexual harassment at work. Although harassment in the workplace is illegal in California, the issue remains a hot topic in the media and the courtroom. The Fair Employment and Housing Act requires employers and organizations to ensure a harassment-free workplace. However, this obligation only requires them to take “reasonable steps” to make this happen. Recent news stories have highlighted that more applicants and employees have spoken out to disclose the unlawful treatment they received at work. Unresolved is the question of what the best way to encourage change in the workplace is to stop sexual harassment. However, employees must know their rights and what constitutes a hostile workplace environment until this issue is resolved. An employee may feel that there is a problem at work and should contact a sexual harassment attorney to discuss their case.

A Harassment Attorney is available to explain harassment definition and assist in cases where sexual harassment has been a problem. In EEOC v. Prospect Airport Servs., 621 F. 3d 991, 2010 U.S. App. The Equal Employment Opportunity Commission brought suit under Title VII of the 1964 Civil Rights Act to terminate an employee. It claimed that the employee had been unlawfully placed in a hostile workplace. According to the former employee, he was subject to constant sexual advances by a female co-worker. The inappropriate behavior and sexual advances included the sending of love notes and photos to the employee. She also shared suggestive photos with the employee and sent romantic messages to other employees. He was also cat-called by a female coworker as he passed certain work areas. The employee continued this behavior for a long time, making numerous complaints to his supervisors and managers. While some complaints were ignored, others were not addressed.

In this case, the Court found that the employee had a hostile work environment claim due to three factors. First, the employee presented sufficient evidence to prove that it was a matter of fact whether he encouraged his coworker’s sexual acts even though he had repeatedly rejected her. He presented evidence to show that he did not encourage his female coworker. The co-worker was propositioned so often that the employee could reasonably consider her abusive and hostile behavior. The third factor was that the coworker was so pervasive, and the employer’s insufficient response was sufficient to make the matter go before a jury.

This case shows that an employee can bring a lawsuit against their employer or organization regarding co-workers’ actions. It strengthens the case if they do so more than once. Continuous behavior is more important when a plaintiff has to present their case against a coworker. However, it is not the exact same standard when making a claim against a supervisor. It may suffice to make a claim against an employer for creating a hostile working environment if the employee is subject to sexual assault by their supervisor. This was proven in Dee v. Vintage Petroleum, Inc, 2003 106 CA4th 30 and 35, 129CR2d 923, 927. Even though the case involved a racial insult, the Court found that the plaintiff was able to create a hostile work environment by merely mentioning it once.

What level of conduct is necessary for hostile work environments to be considered? 

The nature of the unacceptable behavior is important when deciding whether a workplace environment is hostile because of sexual harassment. A set of facts may consist of subtle comments or one comment, but a sexual assault allegation or horseplay that is sexually explicit can be as significant as a whole. Hocevar (8 ^th Circuit. 2000) 223F3d 721, 738 is an example of conduct that would not be considered severe enough to constitute a hostile work environment. The Court did not consider that the comments made by the employee were offensive, coupled with a slow dance at a company event, to be sufficient to constitute a hostile work environment. Even if a supervisor made the invitation, it may not be considered a hostile work environment if it is only on one or two occasions.

The bottom line is that employees who are well-informed about their rights will be more able to protect themselves in the workplace, even if the employer does not take reasonable steps to stop sexual harassment in the workplace. An employee might also be able to gather enough evidence to call a sexual harassment attorney in their locality to discuss possible remedies.

( Brennan Townsend & O’Leary Enterprises Inc. (2011) 199 CR3d 292, 325) The severity of inappropriate behavior must be measured to determine if there is a hostile environment in the workplace. ( Ellison v. Brady (9th C. 1991) 924 F2d 872, 878)

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How good training can prevent sexual harassment in the workplace

In the United States of America, each state has its own laws on employment law. In California, laws that regulate employment are quite extensive. Employment laws and regulations in California provide protection for employers as well as employees. The downfall in providing this body of law, however, is that it is vast, making it difficult to know all in which it provides.  As a result, most employers and employees remain uninformed of their rights as well as obligations. A Sexual Harassment Lawyer will likely ask during a consultation if the employee was provided any sexual harassment training by their employer.

Per employment laws in California, employers are required to provide sexual harassment prevention training to their employees.  But does this training actually train to prevent?  The seminars have tons of information on the current laws that prohibit sexual harassment and the way in which the law defines certain conduct it forbids, yet sexual harassment remains a reoccurring issue in employment law litigation.  Mainly a Sexual Harassment Lawyer would handle these types of cases.

The current debate is the training seminars are appropriate in theory because they inform individuals on-site what is inappropriate behavior under the law and sometimes they forget to tell the employee has the right to make a complaint about sexual harassment.  However, the other side of the argument is that this information results in a superficial understanding. Laws and regulations can only extend as far as reciting the “do not’s” of the system which entails lengthy legal jargon which does not resonate with every employee. Relaying what the law prohibits is simply talking at the employees rather than talking to them. Effective training would be a type of training that would impact the way in which employees and employers choose to conduct themselves within a work environment. This argument was affirmed by a rent update in the training programs.

In October 2017, the United States Equal Employment Opportunity Commission (EEOC) released two new types of training sessions, one for employers and one for employees. The Commission took a new approach in the creation of the new training programs. Prior programs only recited the law along with legal definitions. The two new programs focus on what behavior is acceptable rather than amplifying prohibited behavior. By sharing information on what behavior is appropriate, employees and employers will have ideas to reference on how to act within the workplace. This shows that the old training programs only commanded employees and employers do not act in a certain way, leaving them with little guidance on how they should conduct themselves without a sexual harassment prevention policy.

The new training sessions provide more opportunities for employers to provide a safer and harassment-free work environment, which can be obtained through the Commission’s training facility. Although the new training programs are available, they do not guarantee a workplace to be free of sexual harassment. It remains that employees need to be aware of the current laws on sexual harassment and their rights. Some other kinds of sexual harassment that employee should be aware of include send nudes, hot gossip and trade-offs.

If you are an employee who finds any signs of sexual harassment at work and did not receive anti-harassment training from your employer, you should call a local Sexual Harassment Lawyer for a free consultation.