Under the law, there are two main types of sexual harassment:

“Sleep with me if you want to keep your job”

Quid pro quo sexual harassment is the type of harassment people are most familiar with. “Quid pro quo” is Latin for “this for that”. This form of sexual harassment involves a supervisor conditioning employee benefits, such as promotions, benefits or continuation of employment itself, on the employee’s acceptance of the supervisor’s harassing conduct, e.g., sexual advances.

There is probably not a more blatant form of employer exploitation of his superior position over a subordinate and the law is correspondingly harsh toward this type of harassment. Under California law, the employer is strictly liable for the sexual harassment of the supervisor and has no special legal defenses available to it. A successful plaintiff can recover lost wages and compensation of other economic losses, emotional distress damages, interest and attorney fees, and in cases where the employer’s officers, directors or managing agents knew of the harassment, punitive damages intended to punish or deter the employer.

Hostile work environment sexual harassment

Hostile work environment sexual harassment (HWE) consists of harassing conduct that is so severe or pervasive that it creates a hostile work environment for employees. Supervisors, co-workers, even subordinates can engage in conduct that gives rise to HWE. Harassing conduct includes slurs, taunts, intimidation, ridicule, groping, grabbing, etc.

Notice the requirement is not severe AND pervasive, but severe OR pervasive, meaning that a single instance of harassing conduct could create a hostile work environment if it is severe enough. Alternatively, a campaign of multiple acts of subtle harassment could collectively create a hostile work environment if it is pervasive enough.

The employee does not have to be the direct target of the harassing conduct in order to file a claim. For instance, a woman who witnesses her female co-workers being groped and propositioned can bring a claim for hostile work environment sexual harassment.

Recently, the California Supreme Court held that employer actions, such as termination, demotion, etc., could also constitute hostile work environment harassing conduct. See Roby v. McKesson HBOC (2009) 146 Cal.App.4th 63.

Harassment by supervisors and co-workers

If the harassment is by a supervisor, under California law, the employer will be on the hook under strict liability. If the harassment is by a co-worker, however, the employer will only be on the hook if a supervisor knew or should have known of the harassment and failed to take immediate and appropriate corrective action.

Federal law diverges from California law here in an unwelcome direction. Under Title VII of the Civil Rights Act of 1964, when a supervisor engages in hostile work environment harassment that does not involve tangible employer actions (e.g., termination, demotion), the employer can escape liability for HWE if the employer can show 1) employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior and 2) the employee unreasonably failed to take advantage of the preventive or corrective opportunities provided by the employer, or to avoid harm otherwise. See Burlington Industries, Inc. v. Ellerth (1998) 524 US 742, 764–765; Faragher v. City of Boca Raton (1998) 524 US 775, 806. This is unfortunate in that many victims of sexual harassment do not immediately report it to their employers for fear of retaliation. Under federal law, these employees may be out of luck. This is one of the reasons why filing a sexual harassment claim under California rather than Federal law is usually the better course.

Conclusion

Sexual harassment law offer strong protections in California and victims should not be afraid to fight back. As always, it is best to talk to a lawyer as soon as possible. This is particularly true given that strict filing deadlines apply (180 days to file a charge with the Equal Employment Opportunity Commission and 1 year to file a charge with the California Department of Fair Employment and Housing). Many lawyers offer free and confidential consultations, so don’t wait.

Related posts:

1. LAPD Hit with $2.3 Mil. Sexual Harassment Jury Verdict
2. Discrimination Laws in California
3. Dukes v. Wal-Mart: 9th Circuit Upholds Class Certification in $11 Billion Sexual Discrimination Case

Tomeika Broussard didn’t either, but when her supervisor called her a "reggin", she suspected it was something bad. Later, she figured out what it was: the n-word spelled backward. Broussard filed a complaint with the Equal Employment Opportunity Commission and was awarded $44,000 in 2007 for racial harassment after she was fired from her file clerk position.

According to an article in the Chicago Tribune, "Coded Prejudice Is Cloaked Dagger" , Bigots have gotten smarter – they know the obvious slurs will get them in trouble. So instead of the usual suspects, they’re turning to code words – slurs in disguise. "People are smart and know they cannot use blatant terms, so they get the message across in other ways," said Sanya Hill Maxion, an EEOC lawyer in San Francisco.

According to the article , federal officials say they have seen an increase in code word harassment complaints ever since the first racial code word complaint was filed with the EEOC in 1996.

Some examples:

in May 2006, the EEOC settled a case in Florida where a manager referred to African-Americans as "you people" and interracial couples as "Oreos" and "Zebras".

In November 2004, the EEOC settled a case where American Indians were referred to as being "on the warpath" and subjected to war whoops and talk of scalping, alcohol abuse and living in teepees.

On April 1, 2008, a federal Circuit Court of Appeals ruled in favor of a white basketball coach who was criticized for marrying an African-American woman. The college vice president referred to her as "Aunt Jemima".

Other EEOC complaints include: a black employee who was repeatedly called "Cornelius" in reference to the ape character from "Planet of the Apes"; a man of Chinese and Italian ancestry who was daily called "Bruce Lee" by his foreman; a credit manager who said black employees were referred to as "you people" and "that one in there"; a black woman who was called "Nappy Headed Mo" and "Queen Sheba".

There appears to be no end to the creativity with which people create new code worded slurs. New ones seem to appear on the Internet every day.

If you have been subjected to code word discrimination, you should contact an attorney right away to see what your rights are.

(Pictured: Tomeika Broussard – Handout Photo Dec. 2007)

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1. Defamation in the Workplace
2. And the Winner for Most Popular Discrimination Complaint in the US Is . . .

I’ve created the below chart from discrimination charge statistics published on the EEOC’s website. Because most people who file an EEOC charge list multiple types of discrimination, the total number of charges is actually less than what’s indicated, hovering around 75,000 to 80,000 per year.

Age discrimination is solidly in sixth place, but I suspect that will be rising significantly as the baby boom generation enters retirement age.

For more information, go to the EEOC’s statistics page.

For a low resolution gif version of the chart, right-click on the thumbnail image and save:

For a higher resolution pdf version of the chart, right-click and save this link: EEOC Charge Statistics by Year.

Related posts:

1. Filing a Discrimination Complaint in California
2. Discrimination Laws in California
3. House Passes Bill Banning Discrimination of Lesbians, Gays, Bis (but not Transgenders)