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I am very scared, tired of this happening. What can I do regarding sexual harassment from a co-worker?

San Diego, CA |

Two weeks ago, my co-worker sexually harassed me physically. I reported it to my boss and he took care of it and made it where I wouldn't have to work with the co-worker as he is the only one of two cooks he has. Today, I went in for work and the co-worker was there. My boss sometimes forgets what days I work so I believe he forgot I was coming in. My co-worker continued to harass me and my boss is not here today. What can I do? Can I call the cops? I don't want my boss to get in trouble as he did took care of the situation but I need something to happen to the co-worker as I have had enough and I need this job to take care of my daughter.

Attorney Answers 3

Posted

As long as there are at least five employees, your boss has an affirmative statutory duty to protect you from the harassment. That means keeping you and the perpetrator separated, or disciplining or even terminating the harasser to stop the harassment. A failure to do so is a violation of the Fair Employment and Housing Act.

You can make a claim against and sue the individual harasser. That might stop him.

The bottom line is the employer as the duty to stop this. If the employer is not willing to stop it, and you are unwilling to put pressure on the employer to carry out its burden, you will continue to experience the harassment.

Good luck to you.

This answer should not be construed to create any attorney-client relationship. Such a relationship can be formed only through the mutual execution of an attorney-client agreement. The answer given is based on the extremely limited facts provided and the proper course of action might change significantly with the introduction of other facts. All who read this answer should not rely on the answer to govern their conduct. Please seek the advice of competent counsel after disclosing all facts to that attorney. This answer is intended for California residents only. The answering party is only licensed to practice in the State of California.

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Neil Pedersen

Neil Pedersen

Posted

I need to correct and clarify something I said in my post. I noted a five employee limitation before the employer can be liable for the harassment you discussed. Actually, under the Fair Employment and Housing Act, you have a right to be free from unlawful harassment even if you are the only employee of the company. Thank you to my colleague Michael Kirschbaum who noted my goof and politely reminded me off line. The plaintiff's employment bar, for the most part, is a wonderful, collaborative group of people dedicated to helping employees in their struggles against their employers. I am proud to be part of that group.

Asker

Posted

Thank you so much for responding and for the correction. Fortunately there are more than 5 employees so I am looking what my options are.

Marilynn Mika Spencer

Marilynn Mika Spencer

Posted

Thank you, Neil and Michael, for this reminder.

Posted

Unless the harassment you are complaining about puts you in jeopardy of physical harm, then this is not an matter for the cops. If there is a physical assault, such as sexual touching without consent, of course you can call police. But police will not act on verbal comments or other non-physical conduct.

Because your boss did the right thing based on your initial reports, it may be that he will be so troubled by this new and repeated offense that he will take the appropriate definitive and conclusive action of terminating this employee. You can state to your boss that you believe that is the solution given that the unlawful conduct did not cease after the mercy of the boss' reaction in response to your previous complaint.

If your boss refuses to terminate this employee, then you should talk with a local employment attorney. For some reason, the syntax or description in your post raises some concern about the size of your employer's workforce, so talk with a local attorney about your legal protections before this situation goes much further.

No legal advice here. READ THIS BEFORE you contact me! My responses to questions on Avvo are never intended as legal advice and must not be relied upon as if they were legal advice. I give legal advice ONLY in the course of a formal attorney-client relationship. Exchange of information through Avvo's Questions forum does not establish an attorney-client relationship with me. That relationship is established only by joint execution of a written agreement for legal services. My law firm does not provide free consultations. Please do not call or write to me with a “few questions” that require me to analyze the specific facts of your history and your license application and prescribe for you how to get a State license. Send me an email to schedule a paid Consultation for that kind of information, direction, and assistance. My law firm presently accepts cases involving State and federal licenses and permits; discipline against State and federal licenses; and disciplinary and academic challenges to universities, colleges, boarding schools, and private schools. We take cases of wrongful termination or employment discrimination only if the claims involve peace officers, universities or colleges.

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Asker

Posted

Hello. thanks for your response. He did sexually touched me without my consent and this is actually the second time. The first time he did, my boss separated us as you saw I mentioned. Then last night, as my boss forgot I worked that day, the harasser was there. My boss fired him last night after my other co-worker reported seeing him do this as we have cameras. As I told Ms. Spencer, he has my number and knows where I live and he won't stop calling and told me he is planning on moving into my building. I am scared to death as I was first sexually assaulted when I was a child. So this is causing me emotional distress and flashbacks.

Christine C McCall

Christine C McCall

Posted

NOW make a police report. This is no longer an employment law issue. Make a complaint about the sexual touching, about the threats to stalk you, and about harassment. Tell the cops that he has romantic aspirations toward you and that you therefore qualify for the Automatic Temporary Restraining Order and ask to consult with the domestic violence resources officer. Don't let the cops give you short shrift here. Be articulate, persistent and unyielding. Be all of that because you need to be.

Marilynn Mika Spencer

Marilynn Mika Spencer

Posted

Ms. McCall has given you excellent advice. I hope you will follow it!

Asker

Posted

Ok thank you so much and I definitely will!

Posted

I agree with Mr. Pedersen and Ms. McCall regarding your overall situation. I understand your question to be asking for guidance on what to do today, as you are assigned to work with the harasser. Know that there is no guarantee that anything you do will get him to stop, but you should make the effort because it might be successful. I recognize it might be frightening to stand up to someone like this.

The rest of what I have to say assumes your employer has at least five employees, which is the minimum number required for your employer to have to comply with the sexual harassment laws. Unlawful harassment is a form of discrimination. To be unlawful, the harassment must be must be based on a protected category, such as race, sex, religion, disability, age (40 and over), pregnancy, or genetic information.

Harassment can include verbal conduct, slurs, derogatory comments, comments or questions about a person's body, appearance, religious, or sexual activity, or indication of stereotyping. Harassment can also include offensive gestures, sexually suggestive eye contact or looks, mimicking the employee in an insulting way, and derogatory or graphic posters, cartoons or drawings.

Harassment is unlawful when the conduct is either severe or pervasive enough to create an abusive environment. Severe conduct would include most physical contact and many types of threatening, vulgar or degrading conduct. Pervasive conduct is widespread, happens frequently and/or in many situations. One offensive statement is not pervasive, but the same comment made over and over again may be pervasive.

If the harassment fits with the description above, know that the harasser is breaking the law. Know that he has no right to treat you this way.

Know that you have not done anything to justify what he is doing. Sometimes sexual harassers pick their victims because they believe the victim is going to crumble and not stand up to them, and that is what they are after. They want to show how powerful they are. They rely on their victim's embarrassment and their victim's willingness to keep the situation private. All of this works in favor of the harasser, not you.

So with this in mind, gather all the strength you can and tell him, loudly so everyone else can hear "Stop it right now. Do not talk to me, do not touch me, do not tease me. I have documented what you have done. I have reported you for what you've done in the past and I will report you for what you do now and in the future. I will report you to the government agency that enforces sexual harassment laws. If I have to take legal action, I will. Do not mess with me."

Report his action to whomever is acting manager. Tell the manager you have already reported this to your boss who took steps to separate you from the harasser. If the manager will not take action, ask him or her to call your boss.

Go into the other room and write down what happens. Keep this log for today and every other day. Keep the log at home, not at work, so it won't be stolen or lost.

If the harasser is after you today and it is intolerable, and if no one in management will resolve the situation, you should consider leaving. Yes, you might get in trouble or even lose your job if you leave. But you also have a good chance of pursuing a legal claim against your employer for failing to stop the harassment – which it is legally required to do. This won't help you in the immediate because you will be out of work, but an attorney may be able to resolve that for you by interacting with the employer.

To find a plaintiffs employment attorney in California, please go to the web site of the California Employment Lawyers Association (CELA). CELA is the largest and most influential bar association in the state for attorneys who represent working people. The web site is www.cela.org. Click on "Find a CELA Member" and you can search by location and practice area. Many CELA attorneys represent clients throughout the state.

I hope you can resolve your situation and wish you the best.

@MikaSpencer * * * twitter.com/MikaSpencer * * * PLEASE READ: All legal actions have time limits, called statutes of limitation. If you miss the deadline for filing your claim, you will lose the opportunity to pursue your case. Please consult with an experienced employment attorney as soon as possible to better preserve your rights. * * * Marilynn Mika Spencer provides information on Avvo as a service to the public, primarily when general information may be of assistance. Avvo is not an appropriate forum for an in-depth response or a detailed analysis. These comments are for information only and should not be considered legal advice. Legal advice must pertain to specific, detailed facts. * * * No attorney-client relationship is created based on this information exchange. * * * Marilynn Mika Spencer is licensed to practice law before all state and federal courts in California and can appear before administrative agencies throughout the country. She is eligible to represent clients in other states on a pro hac vice basis.

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Asker

Posted

Hello, thank you so much for responding. My boss actually made a surprise visit last night and I told him that my co-worker had physically harassed me again. My other co-worker who works in the building next door actually reported him to my boss as we have cameras and he saw what was happening. The harassing co-worker actually ended up running out and my boss told me he is officially fired. Unfortunately, this guy has my number and he knows where I live. He is still continuing making calls to me, my phone is ringing up the hook and i am afraid he is outside of my apartment. he even said he is planning to move in the same building as me. Is this enough for me to go file a claim and sue? If so, where do I go to do this? I have been sexually assaulted when I was a teenager and this is causing me flashbacks, tremors, sleepless nights, and I am scared as I have a baby daughter.

Marilynn Mika Spencer

Marilynn Mika Spencer

Posted

Please review Ms. McCall's advice, which is excellent.

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