Experiencing sexual misconduct at work can leave you with questions about your rights, your job, and what to do next. California employees have a legal right to be free from sexual harassment at work, and employers may be held responsible when those protections are violated.
An employer’s responsibility can differ depending on whether the person who committed the misconduct was a supervisor or manager, a coworker, or a third party such as a customer or client.
Jessica Pride and The Pride Law Firm represent survivors of sexual assault and other forms of sexual misconduct in workplace settings. Understanding your rights can help you make informed decisions about reporting the conduct, dealing with your employer, and exploring your legal options.
Key Takeaways
- Sexual assault at work may be considered unlawful sexual harassment under California employment law.
- The rules for holding an employer responsible can differ depending on whether the misconduct involves a supervisor, coworker, or third party.
- Prior complaints or other warning signs can be especially important in cases involving coworkers, clients, or customers.
- If you’re concerned about reporting to HR or have been asked to provide a written statement, consider speaking with an attorney first about protecting your rights.
Sexual Assault and Workplace Sexual Harassment in California
Employment law uses “sexual harassment” to cover a wide range of unlawful sexual conduct in the workplace. This can include inappropriate sexual comments, showing pornography, unwanted sexual touching, sexual assault, or rape.
Workplace sexual harassment can also involve a supervisor using their authority to pressure an employee into sexual activity in exchange for a workplace benefit. This is commonly known as quid pro quo sexual harassment. For example, a supervisor can’t require sexual favors in exchange for a promotion, better assignment, or other employment opportunity.
Sexual conduct may also create what the law calls a hostile work environment. In general, this involves unwelcome conduct that is severe or occurs often enough to change the conditions of someone’s work. A single incident of particularly serious sexual misconduct may also support a workplace sexual harassment claim.
When Can an Employer Be Held Responsible for Workplace Sexual Harassment?
Who committed the misconduct can make an important difference in determining an employer’s responsibility.
If the Person Was a Supervisor or Manager
When a supervisor or manager commits unlawful workplace harassment, California law can hold the employer responsible for the supervisor’s conduct.
A supervisor’s position can be especially significant because that person may have authority over someone’s assignments, schedule, opportunities, advancement, or other aspects of employment.
If the Person Was a Coworker
Different rules apply when the person who committed the misconduct was a coworker at the same level as the complainant rather than a supervisor.
To establish a claim against the employer in this circumstance, you need to show that the company knew or should have known about the misconduct and failed to take appropriate action. Prior complaints, reports of inappropriate touching, sexual comments, threats, boundary violations, or other warning signs may help show that the employer had notice of a problem.
What the company did after learning about the misconduct may also matter.
If the Person Was a Client, Customer, or Other Third Party
Workplace sexual misconduct doesn’t always involve another employee. Customers, clients, vendors, contractors, and other third parties may also sexually harass or assault someone while they’re working.
To establish a claim against the employer for a third party’s misconduct, you need to show that the employer had notice of the problem. Previous complaints, incidents, or other warning signs may help show that the employer knew or should have known about the misconduct and had an opportunity to respond.
Employees shouldn’t have to tolerate sexual misconduct simply because the person engaging in it is a customer, an important client, or someone else the employer does business with.
Should I Talk to HR After a Workplace Sexual Harassment or Assault?
Reporting workplace sexual misconduct to HR can be an important step, but survivors may understandably have concerns about doing so. You may be worried about being believed, losing your job, facing retaliation, continuing to work with the person involved, or losing control over what happens after you make a report.
It’s important to understand that human resources works for the employer. HR may investigate complaints and respond to workplace misconduct, but it also represents the company’s interests. That doesn’t mean you shouldn’t make a report. It means you may want to understand your rights and what to expect from the process.
This can be especially important if HR asks you to prepare or sign a written statement about the incident. Before submitting a statement or participating in an internal investigation, consider speaking with an attorney about your rights.
“If you’re nervous about going to HR or you’ve been asked to put something in writing, it can help to talk with an attorney first. HR works for the company. Your attorney works for you. Having someone in your corner who understands your rights can help you make informed decisions about how you want to move forward.” — Jessica Pride, The Pride Law Firm
If you didn’t report what happened right away, don’t assume that you’ve lost your legal options.
Does a Workplace Sexual Assault Have to Happen at Work?
Not necessarily. Work can extend beyond an office, store, job site, or other physical workplace. Employees travel for business, attend conferences and networking events, meet with clients, and participate in company retreats, holiday parties, and other work-related events.
Sexual misconduct that occurs away from the workplace or outside normal working hours may still be connected to someone’s employment. For example, it may matter if the employer organized or sponsored an event, expected employees to attend, or sent an employee on business travel.
The situation may differ when coworkers meet privately for reasons unrelated to work. Even then, problems can follow a survivor back to work. Harassment, retaliation, or other treatment after the incident may raise concerns about the employer’s response.
What Evidence Can Be Important in a Workplace Sexual Harassment Case?
Survivors sometimes worry that they can’t pursue a case because no one else witnessed what happened. Sexual misconduct frequently occurs without eyewitnesses, but the absence of a witness doesn’t automatically prevent someone from pursuing a civil claim.
Relevant information may include:
- Text messages, emails, direct messages, or other communications
- Reports or statements made to HR or management
- Internal investigation records
- Security-camera footage
- Workplace policies or personnel records
- Schedules or performance records
- Medical or therapy records
- Police reports, if a report was made
- Photographs or other documentation
- Previous complaints involving the same person
Not every survivor will have these forms of evidence, and the employer may control some records. An attorney can help determine which information may be relevant and which records could be obtained.
What If My Employer Retaliates Against Me for Reporting?
California and federal employment laws prohibit certain forms of retaliation against workers who engage in legally protected activities, including reporting unlawful workplace harassment.
Retaliation doesn’t necessarily mean being fired. It can include a demotion, reduced hours, undesirable assignments, disciplinary action, exclusion from opportunities, or other negative employment actions connected to a protected complaint or report.
If treatment at work changes after you report sexual misconduct, consider preserving emails, messages, schedules, performance reviews, disciplinary notices, and other records that document those changes.
What Compensation May Be Available?
Workplace sexual misconduct can affect a survivor emotionally, financially, and professionally. A civil claim may provide compensation for harm and losses resulting from unlawful conduct.
Based on the claims involved, compensation may include lost wages, loss of future earning capacity, medical or therapy expenses, emotional distress, pain and suffering, and other related losses. Other forms of relief may also be available.
How Long Do I Have to Take Legal Action in California?
The amount of time you have to take legal action depends on the type of claim involved.
For certain employment claims under California’s Fair Employment and Housing Act (FEHA), you generally must file a complaint with the California Civil Rights Department within three years of the alleged unlawful practice. Before pursuing a FEHA lawsuit, a survivor must also complete the required administrative process and obtain a right-to-sue notice.
Federal employment claims can have much shorter filing deadlines, while other civil claims arising from the underlying conduct may allow more time to act.
Because the applicable time limits depend on the claims involved, it can help to speak with an attorney sooner rather than later. Talking with a lawyer doesn’t require you to file a lawsuit, report the assault to law enforcement, or make an immediate decision about what you want to do next.
Talk With a California Workplace Sexual Assault Attorney
Workplace sexual assault can affect more than a survivor’s sense of safety. You may still depend on the same workplace for your income, health insurance, professional relationships, or career, which can make decisions about reporting or taking legal action especially difficult.
You don’t need to know what you want to do next before getting legal advice. During a confidential consultation, you can ask questions, understand your rights, and consider your options before deciding what steps, if any, you want to take.
Jessica Pride has dedicated her legal career to representing sexual assault survivors. At The Pride Law Firm, survivors can learn about their legal options and make informed decisions without pressure to take a particular course of action.
If you have questions about workplace sexual assault, you can contact The Pride Law Firm at 619-516-8166 or through our online contact form for a confidential consultation.
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