Sexual Harassment by the Same Sex

California law protects employees from sex discrimination in the form of sexual harassment, including harassment by co-workers or supervisors of the same sex that creates an intimidating, hostile, or offensive work environment. California Government Code section 12940(j)(1). This form of sexual harassment can happen to both employees who are attracted to the same sex and those who are attracted to the opposite sex. Regardless of one’s sexual orientation California law prohibits sexual harassment. Under California law, the offensive conduct need not be motivated by sexual desire, but instead could consist of offensive remarks about a person’s sex. If the offensive remarks or conduct about a person’s sex also threatens violence, this could also be a violation of the Tom Bane Civil Rights Act, California Civil Code section 52.1, or the Ralph Civil Rights Act of 1976, California Civil Code section 51.7.

An example of sexual harassment by the same sex: A homosexual female supervisor begins to ask a female co-worker questions about her sexuality and sex life. The female employee tells the supervisor that she is homosexual as well. Once the female supervisor finds this out, she begins to schedule the female worker’s shifts according to her own schedule. The female worker realizes what is happening and tells the supervisor that she is not interested in any type of relationship. The supervisor does not give up. After a few more failed attempts, the supervisor threatens the female worker. She tells the female worker that if she does not want her hours to be cut, then she needs to go out with her. If you are experiencing or have experienced a situation similar to this, contact our office.

Another example: A homosexual employee begins to work for a homosexual male manager. Just a few days after he begins to work there, the supervisor tells the employee that they will be going for lunch the next day so that they can get to know each other better. He tells him that this is something that he does with all of his new employees. During their lunch, the supervisor tells the male employee that he really likes him and that he is just his type. The new employee immediately tells him that he does not want to get involved with anyone at work because those relationships never end well. The supervisor then says to him that he should really think about it because he could move up in the company a lot faster if they dated. If you are experiencing or have experienced a situation similar to this, contact our office.

Is your employer following the law concerning sexual harassment in the workplace?

Employers must post the California Law Prohibits Workplace Discrimination and Harassment poster (DFEH-E07P-ENG) in a prominent and accessible location within the workplace. See California Government Code section 12950; California Code of Regulations, title 2, section 11013. The poster summarizes the prohibitions on workplace discrimination and harassment found in the California Fair Employment and Housing Act (FEHA), California Government Code sections 12900-12996, and its regulations, California Code of Regulations, title 2, sections 11000-11141.

Employers must also provide all employees with a sexual harassment poster (DFEH-185P-ENG) or fact sheet (DFEH-185-ENG) issued by the California Department of Fair Employment and Housing (DFEH), or an alternative writing furnishing information on sexual harassment in the workplace that complies with California Government Code section 12950.

Employers must create and distribute to their employees a written discrimination, harassment, and retaliation prevention policy. California Code of Regulations, title 2, section 11023(b). The required policy, among other things, must provide a complaint procedure that does not compel the employee to complain directly to his or her immediate supervisor (e.g. providing the employee with the option of calling a hotline or a person designated specifically for the purpose of receiving complaints). The required policy, among other things, must also provide for a process by which the employer timely responds to complaints of harassment, and conducts an impartial investigation by qualified personnel (e.g. persons with strong communication skills and knowledge about standard investigatory techniques), often from the human resources department, who document progress in the investigation and identify appropriate actions to be taken in response to the complaint. If an outside investigator (someone not employed by the employer) is used, they must be a licensed attorney acting in the capacity of an attorney or a licensed private investigator. See California Business and Professions Code section 7520 et seq. If ten percent or more of employees at the workplace speak a language other than English as their spoken language, the employer must translate the written discrimination, harassment, and retaliation prevention policy into every language that is spoken by at least ten percent of employees. A responsible employer will ensure that its policy is clear and easy to understand, and will discuss its policy in meetings at regular intervals. However, if your employer has not provided you with such a policy, your employer may be in violation of California law and is less likely to promptly stamp out harassment that arises in its workplace.

If you have experienced sexual harassment at your workplace:

• Review the polices contained in any handbook or other employment-related policy documents transmitted to you by your employer. Pay particular attention to any sexual harassment policy and, if present, the stated procedure you are to follow when making a complaint of sexual harassment.
• Put your complaints of harassment in writing. Make sure you record each incident of harassment, including what was said and by whom, what was done, as well as the date, time, location, and all persons involved or who may have witnessed the incident.
• Promptly inform your employer of the harassment. Be sure to identify any resolution or remedy you may be seeking, e.g. termination or reassignment of your harasser. Assuming your employer is in compliance with the law and has a written sexual harassment policy, be sure to follow the instructions for reporting harassment stated in your employer’s sexual harassment policy, utilizing any options in the policy that you feel would be beneficial. By doing this, you can increase the likelihood that your employer will investigate fully your complaint and prevent further harassment. Be sure to follow up with your employer on its progress in investigating your complaint. The employer should promptly interview you and all other relevant witnesses. In some instances, an employee may feel that it is a better course of action to make an anonymous report of harassment.
• Seek out family and friends for support, as persons who have been sexually harassed often have feelings of anger, humiliation, anxiety, guilt, and/or depression, or experience insomnia, racing thoughts, insomnia, and/or gastrointestinal disorders.
• Seek treatment from a healthcare provider, if you believe this would be of help to you.
• Locate resources in your community for victims of sexual harassment, if you believe this would be of help to you.
• You may file a discrimination complaint with the California Department of Fair Employment and Housing (DFEH), which enforces California antidiscrimination laws concerning employment, online, by mail, or by telephone. You may take this action through an attorney of your choice or on your own. The DFEH will evaluate your discrimination complaint and decide whether to investigate the facts and legal issues raised by the complaint. If the DFEH investigates your discrimination complaint, the DFEH may attempt to resolve the dispute or take legal action.
• You may also file a charge of discrimination with the Federal Equal Employment Opportunity Commission (EEOC), which enforces federal antidiscrimination laws concerning employment, online. You may take this action through an attorney of your choice or on your own.
• If you have been sexually assaulted, report the incident to the local police, or, if you are in danger, call 911.

If you have experienced sexual harassment at your workplace, contact the sexual harassment lawyers at Kokozian Law Firm, APC.