Southern California Guide To Bringing A Sexual Harassment Claim: Simple, Effective Steps
Many employees want to know what their legal options are if they have been subject to sexual harassment at work. From the technology companies in Silicon Beach to the aerospace companies in South Bay, and biotechnology firms in Irvine and San Diego, employees want to know their rights.
Understanding Your Options For Protecting Your Career And Holding The Wrong-doers AccountableThe tremors can be felt throughout California. And I am not referring to an earthquake. I am referring to the allegations throughout 2017 of sexual harassment that de-throned entertainment industry kingpins such as Harvey Weinstein and Kevin Spacey as well as Silicon Valley titans such as Uber's Chief Executive Officer Travis Kalanick. The reported allegations of sexual harassment appeared in newspaper editorials, newspaper articles, and press conferences as well as Twitter, Facebook and other social media. California will be experiencing the ramifications for years to come.
Employees in workforces all throughout California are becoming increasingly aware that sexual harassment in the workplace is unlawful. This is important. Frequently employees are surprised to learn that California has very well established and powerful laws protecting employees from sexual harassment and providing strong remedies for employees when harassment has occurred. But what does it mean to actually bring a claim in California? What does that entail? Before we go there, it is important to have a little background.
Maybe you are a woman in the aerospace industry in South Bay? Or a woman in the burgeoning tech companies Venice or Santa Monica in Silicon Beach? Or a nurse in a medical facility in Los Angeles or the surrounding area? What should you know about sexual harassment? This article addresses some of the nuts and bolts of these issues for employees in California. In order to help guide the reader, we have organized this article around a series of questions and answers to provide accurate information and dispel misconceptions. When the subject of sexual harassment in the workplace arises, many people unfortunately believe that they will necessarily become public figures involved in press conferences and high level public scrutiny. This is typically not the case at all. The high level of publicity generally surrounds employees, who are reporting on highly visible entertainers, politicians, or business titans. In the more ordinary case, employees who want to handle the claims without public fanfare can do so. There are a variety of options. First, the employee can choose to send a private or confidential demand letter (with a draft court complaint that is not filed). In many instances, a case can be resolved from that point into a mediation. A mediation is a private usually day long negotiation often presided over by a retired judge that the parties (the employer and the plaintiff) select for that purpose. No court filing whatsoever, just a negotiation. Or, if the employee already has signed a valid mandatory arbitration agreement, the matter might be litigated entirely before a retired judge selected by the parties to hear the case. Both of these options are private. In other instances, the Plaintiff may go to Court---- although that does not necessarily mean testifying at trial. Cases filed in Court most frequently will settle in mediation, before court testimony is ever taken. It is important for victims of harassment to document their damages by seeing a medical professional. This is one of the keys to a successful outcome.
How California Defines Sexual HarassmentWhat is sexual harassment?
In the first place, sexual harassment in California is made against the law by the Fair Employment and Housing Act and its implementing regulations and a whole lot of case law interpreting it. The laws are well-established and include harsh civil remedies such as compensation not only for humiliation and embarrassment and emotional injury but also lost wages and punitive damages. Verdicts reaching tens of millions of dollars have been issued by juries to California plaintiffs and successfully defended on appeal.
Sexual harassment is any unwelcome conduct in the workplace based on sex that is severe or pervasive. Examples of the conduct as set forth by the Department of Fair Employment and Housing might include;
Unwanted sexual advances;
Offering employment benefits in exchange for sexual favors (often referred to as quid pro quo harassment)
Leering; gestures; sexually suggestive objects, cartoons or posters;
Derogatory epithets, comments, slurs or jokes
Graphic comments, sexually degrading words, or suggestive or obscene messages or invitations;
Physical touching or assault as well as blocking movements;
The aggrieved conduct can be between a man and a woman or people of the same sex. The law does not require a showing of actual sexual desire. The unwelcome conduct can express gender hostility such as a man repeatedly referring to women with derogatory epithets in the workplace.
What does it mean for employee to bring a claim for sexual harassment in California?
A claim for sexual harassment against an employer could take the form of a confidential letter to the employer, addressed to the senior human resources official and to other members of top management. The letter would set forth the different types of conduct constituting violations of the Fair Employment and Housing Act and demand compensation for injuries caused by the harassment. This type of approach might also include a draft Complaint so that the employer understands that if a private negotiation is not productive that the matter will be taken into court. In these instances it is often helpful to simply request mediation (typically day-long negotiation conducted by retired judge or other neutral party) rather than ask for a specific dollar amount. If the employer is willing to engage in this type of negotiation prior to the filing of a complaint in court, it might take 60 to 90 days to resolve the dispute, assuming that the negotiation leads to a settlement. It is important that these negotiations be handled professionally. No claimant with a righteous claim wants to leave the impression that they are engaged in extortion or other unlawful conduct. The wording of any letter or claim brought to the attention of company management needs to be carefully drafted to avoid such pitfalls while forcefully advancing the interests of the wronged employee and documenting the harassment that has occurred. Damages are an essential part of any claim and a well documented medical record will be an important part of any demand letter. From a standpoint of disclosing witnesses, that probably should not be done until declarations are obtained.
Going To Arbitration Or Filing In CourtLikewise, in some instances the Plaintiff may have signed a valid and binding arbitration agreement, obligating him or her to bring the claim in front of an Arbitrator instead of a jury. If the harassment victim does not challenge the validity of the arbitration agreement in open court by filing a complaint in court, and instead goes directly into arbitration, the matter would remain private and confidential in arbitration. Arbitration is a hearing in front of the Arbitrator that the parties select to decide the case. The Arbitrator is frequently a retired judge. Generally speaking, cases in arbitration have a lower value than cases decided by a jury in court. But that does not mean that this forum should be disregarded or the case abandoned.
Once the Right to Sue is secured, the lawsuit itself can be filed in court. A lawsuit filed in court this way is a public document. Anyone who does a search can find it. It resides on the court's docket online. There are deadlines for filing the lawsuit after the Right to Sue is secured.
If the harassment victim files in court, does that mean that she will necessarily be testifying in court about her case in front of a jury?
Probably not. Relatively few cases go to trial. If the case is filed in court, it is very likely that a deposition of the harassment victim will be taken. The deposition is to take testimony and is conducted in the conference room of one of the lawyers on the case. The deposition can last a few days, or may be done in the better part of one day, depending on the defense counsel and the facts of the case.
By the time, the Plaintiff's deposition is taken, and the depositions of the opposing party are conducted, there is frequently an interest in settlement. At this point, the case can be taken before a retired judge or other attorney neutral to determine whether a compromise can be reached.
Of course, many times the cases are litigated until after the defendants file a Summary Judgment Motion. This is close to trial. The summary judgment motion is supposed to prevent the case from going to trial. Although the Motion may be successful in removing some causes of action, typically the case is permitted to go forward. The mediation is scheduled either during the pendency of the Summary Judgment Motion, or after the court has ruled.
In relatively few instances, the case will go into trial when any prior mediations are unavailing. And it is solely in those instances when the harassment victim testifies in open court. For a Plaintiff with witnesses and documentary evidence, settlement before trial should be an option.
What You Can Do (and Avoid) To Help Your CaseKeep a journal and document the harassing conduct in detail with contemporaneous notes. Keep track of names and contact information for employee witnesses and other employees who have been harassed by the manager or supervisor or co-worker harassing you.
Keep harassing emails, texts, or posts sent to you by the harasser(s). If similar material is sent to others, keep track of that in your journal.
Complain to human resources or your supervisors in writing, documenting the conduct that you are complaining of and that is offensive to you. Make clear that the conduct is unwelcome and offensive and based on your gender. Email complaints addressed to senior officials in HR and to yourself are helpful. There are statutes of limitations that apply to these claims. So you should make sure that you are filing on a timely basis with the DFEH in order to preserve your rights. Finally, you should ask your lawyer about other common law and statutory claims that might apply. It is often beneficial to supplement your harassment pleading with other related claims.
Document your emotional distress injuries with your family physician or therapist, and consider testing with a forensic psychologist.
If you have some knowledge about whether your employer has Employment Practices Liability Insurance, this can be helpful. If you know about any prior lawsuits filed against the company, and/or the harasser, this can be helpful. If you possess a copy of the employee handbook, your lawyer will want to see that.
Avoid talking to and organizing other witnesses yourself. This can be used and twisted by the employer. Have your attorney use an investigator to get statements from other witnesses.
Avoid taking company emails or documents that contain proprietary information. Ask your attorney if you have any questions. The employer can claim you are stealing their private documents.
Avoid posting things about the case on social media. The employer will review your social media and may be able to use your posts against you. Indeed, if you are making a claim for emotional distress due to sexual harassment, and then post about a string of fabulous overseas vacations with photos (for example), the employer will point to this as evidence of an absence of bad feelings from the alleged harassment.
By and large, see an attorney early and be conscious of what sort of record the case will entail. Social media posts frequently are not private and will be viewed by the employer and its attorney in connection with the case; as will your emails and text messages (except to your attorney, which are confidential and privileged).