Workplace sexual harassment by a supervisor, boss or employer can be a nightmare. Often employees don’t know what to do when a superior is engaging in sexually harassing conduct. This conduct can be in the form of verbal comments, suggestive innuendos, inappropriate touching, visual conduct and outright suggestions or demands for sexually related conduct. When this occurs, either at its inception or through a continued course of sexually suggestive activity, the employee wants the harassing conduct to end immediately. (Frankly, it should never have started in the first place.)
When an employee considers reporting the conduct and standing up for him or herself (sexual harassment can be against either sex) thoughts of adverse employment retaliation may cross the mind. An employee may feel that reporting the sexual harassment will result in personal humiliation when discussing such acts with other supervisors or company personnel. Also, underlying the entire matter is that an employee may believe that reporting such conduct carries the risk of being ostracized, labeled a troublemaker or unworthy of promotion, etc. An employee could be worried whether others will believe the report or take the side of the supervisor. Further, companies that do not stand to protect employees from sexual harassment may put that employee at risk of future professional and/or economic damage. These concerns are legitimate but should never be the basis for allowing sexual harassment to continue at the employee’s emotional, physical and economic expense.
Many times, a supervisor has a longer employment history, or some level of relationship with the employer and thereby gains a level of favoritism over the complaining employee. As a result, the employee has fears of not being believed, being fired, demoted, written up or black listed from advancement. Are these fears baseless for the particular circumstance faced by the employee? To answer that question, an employee might review the employment manual to see if it contains a strong policy against sexual harassment. Review whether the employer publically and/or internally expresses concern against such conduct and/or encourages employees to report sexual harassment claims confidentially and without recourse or reprisal. These conditions may indicate an employer who will take proper action to stop the sexual harassment. Unfortunately, the final answer as to how the complaint will be treated may not come until the employee exposes his/herself to the employer by reporting the sexually improper conduct.
In California, an employer is strictly liable for the sexual harassment by a supervising employee. That does not mean the employer is responsible for all the damages suffered by the employee. There remains a level of responsibility on the employee to "mitigate" his/her damages from the continuing sexual harassment. Mitigation (meaning to reduce) comes in the form of reporting the conduct to the employer at the point where the employee considers it to be negatively effecting the employee’s work environment and conditions. For example, a simple off color remark or sporadic or infrequent remark would not necessarily make the employment environment sexually harassing. However, frequent remarks, sexually suggestive conduct or other actions that make the work place seriously uncomfortable. In such situations, the circumstances require the employee to take action and report the conduct of the supervisor. An employee’s failure to report the sexually harassing conduct while the employee’s well-being is being damaged can prevent the employee from recovering all her damages from the employer for the inappropriate conduct. An employee’s damages from the wrongful conduct may be reduced due to the employee’s failure to use the employer’s means of addressing the sexual harassing conduct.
SEXUAL HARASSMENT IS NOT A LEGITIMATE CONDITION OF EMPLOYMENT. Only you can prevent such conduct from continuing. Here are the steps you should take if you are being subjected to sexually harassing conduct from a supervisor or other employees within your employment:
1. Review the company policy manual regarding sexual harassment;
2. Ask the individual to stop the conduct or report the inappropriate conduct to the appropriate individual within the company;
3. Review the conduct with an attorney experienced in sexual harassment claims;
PROTECT YOUR RIGHTS TO BE FREE FROM SEXUAL HARASSMENT.