Unwanted or Unwelcome Sexual Advances at Work

The lawyers at Kokozian Law Firm, APC have represented a multitude of individuals with workplace Sexual Harassment claims, including claims of unwanted or unwelcome sexual advances at work.

It is unlawful to harass an employee or a job applicant because of that person’s sex. Harassment based on a person’s sex includes unwanted or unwelcome sexual advances. Unwanted or unwelcome sexual advances are expressions of romantic or sexual interest that are unwelcome, unreciprocated, unpleasant, or offensive to those targeted by the sexual advances. Commonly, a supervisor will initiate some form of sexual advance or proposition with an express or implied threat that if the employee refuses, the employee will be terminated or demoted, or lose other job-related benefits. Alternatively, the employee may be promised a promotion or pay raise if the employee submits to the sexual advances.

Sexual Harassment was first recognized in cases in which women lost their jobs because they rejected sexual overtures from their male employers. Based on one study, 58% of women report having experienced potentially harassing behaviors and 24% report having experienced sexual harassment at work. Ilies R, Hauserman N, Schwochau S, Stibal J. Reported incidence rates of work-related sexual harassment in the United States: Using meta-analysis to explain reported rate disparities. Personnel Psychology. 2003;56(3):607–631. The more male-dominated the work environment, the more women tend to experience sexual harassment, including unwanted and unwelcome sexual advances. Women are also more likely to experience sexual harassment if the employer is perceived as having an institutional tolerance for sexual harassment. These women became targets of their superiors’ sexual desires because they are women. They are asked to bow to their superiors’ desires as a condition of holding their jobs or advancing in their professions. Sexual harassment makes the task of earning a paycheck fraught with anxiety, fear, and discomfort. Women who are targets of unwanted sexual advances may fear retaliation by their employer and feel they have nowhere to turn because no one is likely to believe them or care that they have been harassed. They may experience a wide range of negative consequences, including physical and mental health problems, career interruptions, temporary economic uncertainty, and lower earnings. Sexual harassment may also discourage women from advancing into higher paid careers, thereby contributing to the persistent gender wage gap whereby women are often paid less than men for the same or comparable work. This defeats the goal of the California Equal Pay Act to achieve gender pay equity for all Californians. Sexual Harassment may also intersect with other forms of discrimination and harassment based on race, ethnicity, sexual orientation, age, or disability, as certain groups of people may be perceived as being less able or willing to stand up for themselves.

While most sexual harassment claims resulting from unwanted or unwelcome sexual advances involve a male harasser and a female victim, the victim as well as the harasser may be a woman or a man, nor does the victim need to be of the opposite sex. In addition, the harasser need not necessarily be a supervisor but can also be a coworker, or a supervisor in another area or department.

The defining characteristic of this type of sexual harassment is that the sexual advances are Unwanted and Unwelcome. Sometimes, a victim may consent or agree to certain sexual conduct that is offensive or objectionable to keep from losing his or her job or to keep from suffering an adverse employment action such as:

• Demotion
• Transfer to a less desirable job
• Reduction of hours
• Unjustified negative performance evaluations
• Unjustified negative references
• Increased monitoring at work
• Threats

Sometimes, a victim may also consent or agree to certain sexual conduct that is offensive or objectionable out of fear that any actions taken to resist the sexual advance will be misconstrued and there will be long-term repercussions to the victim’s professional and reputational prospects. Nonetheless, if the sexual conduct is unwanted or unwelcome, the sexual conduct is illegal because the person subjected to it considers it unwanted or unwelcome. Whether the person wanted or welcomed the sexual advance, and whether the conduct rises to the level of illegal sexual harassment, depends on the circumstances and is fact specific. What passes as seduction or harmless fun for one person might be a nightmarish experience for the targeted person.

Sexual harassment in the form of unwanted or unwelcome sexual advances can include:

• Standing close to, or leaning toward or brushing up against another person, or otherwise invading the other person’s space
• Touching or rubbing oneself sexually around another person or exposing oneself indecently to another person
• Physical Touching of another person’s body, clothing, or hair, including by giving a massage, or stroking, patting, hugging, kissing, licking, pinching, or biting the other person
• Subjecting another person to Visual Displays of Sexual Materials, such as pornographic materials, particularly if this is done repeatedly or if suggestive comments are made to the other person while the materials are shown
• Making facial expressions such as throwing kisses, winking, licking lips, or raised eyebrows
• Making sexual gestures through hand or body movements
• Leering or staring at another person or looking the person up or down appraisingly
• Repeatedly, persistently, or relentlessly asking out a person, who is not interested, for a date or drinks or dinner
• Making uninvited sexual comments about another person’s anatomy, looks, piercings, clothing, or accessories, or suggesting the other person wear more revealing clothes
• Wolf whistling at another person, or making catcalls or kissing, howling, or hooting sounds, or smacking lips, particularly while looking at the other person
• Asking questions about another person’s social and sexual life or sharing details about one’s social and sexual life or the sexual inadequacies of one’s partner with another person
• Asking about another person’s sexual fantasies, sexual preferences, or sexual history, or sharing details about one’s sexual fantasies, sexual preferences, or sexual history with another person
• Referring to another person as a girl, boy, hunk, sexy, darling, doll, babe, hun, honey, sweetheart, sweetie, or other words that might make a person feel as though they are being referring to as a sexual object
• Repeated offensive phone calls or emails
• Bringing inappropriate gifts to work, such as underwear
• Inappropriate invitations, such as to visit a hot tub, sauna, or massage parlor together

Federal Law

Title VII of the Civil Rights Act of 1964 (42 United States Code section 2000e, et seq.)

State Law

The Fair Employment and Housing Act (FEHA), California Government Code sections 12900 – 12996

Local Law

Examples include:

Sexual Harassment San Francisco Policy (Administrative Code Sec. 16.9-25)

Investigation of Complaints of Discrimination and Sexual Harassment Against City Officials (Los Angeles Charter and Administrative Code sec. 4.405, et seq.)

No Notice to the Employer

It is important to alert your employer of the fact that you are being sexually harassed as soon as possible. If your employment ends before you have notified your employer about the harassment, it may be difficult, if not impossible, to bring a successful legal claim for sexual harassment. Moreover, speaking out about the harassment may encourage other workers who have experienced harassment to come forward.

Prior consensual relationship with the harasser

A common defense to claims of sexual harassment is that the sexual nature of the behavior was welcomed or consented to by the targeted employee. The defense is harder to overcome if there has been a prior relationship between the parties. However, every employee has the right to work free from discrimination, regardless of her romantic history. A harasser cannot use a prior relationship as an excuse to engage in unwanted or unwelcome, and thus illegal, sexual advances.

If you have faced unwanted or unwelcome sexual advances at work or have otherwise been sexually harassed at work, call the experienced attorneys at Kokozian Law Firm, APC or Contact us via our online form.