This week’s question comes from Janet in the East Bay, who writes:
Q: “Chris, at my firm holiday party my supervisor and I drank too much. We were playfully teasing each other when he suddenly took my hand, told me how sexy I looked and kissed me on the lips. I was stunned and didn’t reciprocate. I became very uncomfortable and left. After the party, my supervisor has texted me three times on my company cellphone during work hours asking me to go out after work. I was disturbed by his texts and, following the first one, I texted back no. I was hoping he would stop and have not responded to the other two texts, although he has asked me to ‘give him another chance.’ Other than texting me, he has not said or tried to do anything suggestive. I’m anxious, though, every time I’m in the same room with him and concerned about what may happen. What should I do?”
A: Janet, I am sorry to hear you are experiencing such an uncomfortable and distressing work situation.
Under California law, employers must provide workplaces that are free of sexual harassment. Despite laws aimed at preventing sexual harassment in the workplace, it remains a persistent problem. When asked if they experienced one or more sexually based behaviors, such as unwanted sexual attention or sexual coercion, 40 percent of women say they have been sexually harassed on the job.
The California Department of Fair Employment and Housing defines sexual harassment as unwanted sexual advances or visual, verbal or physical conduct of a sexual nature. There are two primary types of employment harassment: quid pro quo harassment and hostile work environment.
Quid pro quo harassment refers to when submission to sexual conduct is made a condition of employment. Janet, if your supervisor offered you a raise to date him or threatened you with a demotion if you refused, that would constitute quid pro quo harassment.
A hostile work environment occurs when an employee experiences offensive conduct that is severe or pervasive enough to interfere with an employee’s ability to perform her or his job. The offensive conduct can take many forms including:
• Unwanted sexual advances or propositions;
• Visual conduct: leering, making sexual gestures, displaying of suggestive objects or pictures;
• Verbal conduct: making or using derogatory comments, slurs and jokes;
• Verbal abuse of a sexual nature, graphic statements about an individual’s body, sexually degrading words, suggestive or obscene letters; and
• Physical conduct: touching, assault, impeding or blocking movements.
While demonstrating a hostile work environment often requires showing a pattern of offensive conduct, a single incident may create a hostile environment. Some factors considered are whether the conduct was verbal or physical, how offensive the conduct was and whether the harasser was a co-worker or supervisor.
Janet, the unwanted physical contact at the party followed by the repetitive requests for a date combined with the fact that the harasser is your supervisor are all reasons why a strong argument can be made that you have been subjected to hostile work environment sexual harassment.
Here are the steps I recommend you take:
First, copy the text messages so you have a record of what happened. This is very important evidence.
Second, report the harassment to your company. Send an email or write a note to his supervisor and the head of human resources. This puts the company on notice that your rights have been violated and that they need to take action to protect your rights. Look in your employee handbook to see whom is designated to receive complaints and make sure that they receive a copy, too. Keep notes of what you send and who you speak to so you have a record of what occurs.
The company has an obligation to conduct a good-faith investigation into your complaints and to take prompt and sufficient remedial measures to stop the conduct and make sure that you face no additional harassment. The law prohibits retaliation for reporting a good-faith belief of harassment or discrimination.
You also have a legal right to file a complaint with the Department of Fair Employment and Housing. This governmental agency is charged with investigating complaints of discrimination and harassment in the workplace.
If you want to proceed with legal action, you must file a complaint within one year of the harassment. The DFEH serves as a neutral fact finder and attempts to help the parties voluntarily resolve disputes. If the DFEH finds sufficient evidence of discrimination and settlement efforts fail, the DFEH may file a lawsuit against the company on your behalf.
At any time after filing a complaint with the DFEH, you can ask for a right-to-sue letter that will allow you to proceed with a private, civil legal action against the supervisor and employer. I suggest that you speak with a trial lawyer experienced in handling sexual harassment cases about your rights and the best course of action. Most trial attorneys will provide an initial consultation free of charge.