Q&A with Marc McCulloch:
Interviewer: What is considered sexual harassment?
Marc McCulloch: The California Government Code (Section 12940) actually takes the term “harassment” that relates to sex and includes such things as sexual harassment, gender harassment, harassment based on pregnancy, child birth or related medical conditions. California has taken that context and enlarged it. Sexual harassment per se, regarding employment, would include unwelcome sexual advances, request for sexual favors, and verbal or physical conduct of a sexual nature. Another factor that may be considered is that the employee’s submission to such sexual conduct is made a term or condition of employment (either explicitly or implicitly), or their willingness to participate in sexual activity is used as a basis for employment decisions, or such conduct on the part of the employer has the effect of unreasonably interfering with an individual’s work performance, or creating a hostile or offensive working environment.
Interviewer: What should I do if I feel like I have been sexually harassed by a fellow employee, boss or client?
Marc McCulloch: The law in California treats each of these slightly differently. In California, if you are sexually harassed by your boss or any supervisory personnel, this is viewed as strict liability in terms of sexual harassment. If, on the other hand, it is a co-worker, the employer will not necessarily be held liable unless he or she knew about it and did nothing to stop it and there was a program in place to prevent harassment. However, the co-worker who harasses you can be held personally liable, whether or not the employer knows about the harassment. The same situation exists with a client of your employer who may be sexually harassing you. Again, if the employer did not know about it or have a program in place to prevent it, then they are not necessarily going to be liable. The first thing you need to do if you feel you are being sexually harassed is let your boss or human resources know about it immediately, and ask that it be stopped immediately. We would recommend that anyone in that position put it in writing and make sure they save a copy of it. In order to hold the employer liable, the employer has to be aware of the situation (or harassment) and failed to take immediate steps to rectify or stop it. The important thing is to let them know about it, and preferably in writing. Many times people will contact us and say that they were sexually harassed at work. When we ask if they told anyone know about it or requested that it stop, they will often say that they did not. In one sense, that is understandable because the employee is often embarrassed, but they really have to let their employer or human resources know about it so they can call upon the law to protect them, if necessary.