Despite the widespread awareness of sexual harassment in the workplace, these cases are still prevalent in the U.S. The conduct can have devastating consequences on your performance, career development, ability to retain the job, and overall employee well-being. Sexual harassment under California civil laws is unwanted contact, physical, written, or verbal sexual conduct directed towards another person, usually in a professional setting. Although this conduct is illegal, it is not a crime. When you are a victim of the behavior, you can seek relief and damages from those responsible.
While you can only seek damages under the remedies provided under civil law, this does not mean that the behavior does not qualify as a crime. When sexual harassment involves sexual assault elements like unwelcomed sexual touching using force, coercion, or intimidation, it becomes a crime. This blog highlights some of the incidents when sexual harassment is deemed criminal and the action you should take as a victim.
Understanding Sexual Harassment
According to Title VII of the federal Civil Rights Act, sexual harassment is a type of gender discrimination that consists of unwanted sexual behavior that creates a hostile professional setting or is utilized as a basis for employment decision-making. The sexual conduct in question includes verbal or physical actions like requesting sexual favors, unwelcomed contact, and sexual acts.
In California, this conduct is prohibited in every professional setting and requires employers to train their supervisors to discourage or deal with sexual harassment incidences. California’s Fair Employment and Housing Act outline two distinct forms of sexual harassment. These are:
1) Quid Pro Quo
Quid pro quo type of harassment happens when an individual in a position of power, explicitly or impliedly, requires you, a subordinate, to submit to their sexual advances in exchange for preferential treatment or avoid punitive employment actions.
Note that this form of harassment can only be perpetrated by a manager, supervisor, or any other worker with real authority in the workplace and uses this authority against you. When your colleagues or employees holding the same work position as you demand sexual favors, they are not committing a quid pro quo form of harassment. Instead, they create a hostile work environment for you.
2) Hostile Work Environment
A hostile work environment is the other form of sexual harassment. This form of harassment is different from quid pro quo because your co-workers create it. Again, the assailant does not need to use coercion or threaten you with punitive action. What happens is that the aggressor takes part in unwanted sexual conduct that makes the workplace intimidating, offensive or unfriendly.
It is worth noting that the harasser’s behavior does not need to target any individual. For instance, when an employee sticks offensive photos of half-naked women in their office, you and other workers can see; this makes you feel uncomfortable, creating a hostile work environment even though the conduct is not targeting any particular individual.
Elements of Sexual Harassment in the Work Environment
For any form of action in the workplace to be considered as sexual harassment, several elements must be present:
Unwanted Conduct
Harassment and sexual assault are two distinct offenses. Sexual assault is a severe criminal act involving unwelcome touching, physical intimidation, or extreme coercion. The unwanted sexual contact must have been forceful to be classified as sexual assault. The reason for defining sexual assault in this section is to differentiate between unwelcome and nonconsensual behavior.
When defending against sexual assault, a defendant can argue that they had consent from the victim, and this can hold as a defense. Nonetheless, consent is not a defense when it comes to sexual harassment. The reason is the harasser usually has authority over you, meaning you can consent to the sexual behavior or fail to resist because of fear of adverse job consequences or job loss if you object. Therefore, sexual harassment can occur even when you consent or go along with the behavior.
The main element of this violation is that, as the victim, you must find the harasser’s behavior unwelcome or unwanted. Therefore, when you grit your teeth but do not object to your supervisor’s sexual jokes, you experience sexual harassment. However, when you fully and readily participate in sexual chitchats with your manager, you will find it difficult to prove sexual harassment because you welcomed the conduct.
Based on Sex
Your assailant’s unwanted behavior must be sexual. Sex-based conduct can be explicit or encouraged by their sexual desires. Therefore, when they portray sex-based behavior based on gender, they commit sexual harassment.
Offensive Work Environment
The unwanted behavior must be severe or pervasive to create an offensive or hostile work environment. One extreme action, like physical assault, can be classified as sexual assault. Nonetheless, harassment is often based on pervasive acts like constant offensive jokes, commentary, and social date requests. When an employee makes a single barrage comment about you in the break room, the law will barely recognize it as sexual harassment because it is not adequate to taint the workplace. So, for conduct to be considered to create an offensive environment, the context must be considered. A reasonable or sober person must feel offended under the same circumstances.
Punitive Employment Action
When you resist or object to your harasser’s sexual advances, they can be tempted to take adverse action against you, like giving you a bad review during performance evaluations or dismissing you from the job. If such tangible and adverse action occurs against you, the victim, it can be easy to prove they engaged in sexual harassment in a professional setting.
Sexual Harassment in at the Workplace as a Criminal Act
When the above incidents of sexual harassment happen, you can take civil actions and file a lawsuit to claim damages. However, you should report the matter to the local authorities when the harassment becomes physical or intensifies beyond commentary and jokes because this is no longer a civil issue but a criminal one. Principally, when unwelcomed contact is forceful, you need to record a statement with the authorities to file sexual assault charges against the perpetrator.
Whether particular conduct at work is a crime is dependent on the local criminal laws and whether the behavior amounts to a crime under the law. Highlighted below are forms of crimes violated when an employee is sexually harassed at work:
1) California Rape
When a sexual harassment incident at work escalates to non-consensual sexual intercourse using force or threats against, the assailant will be charged with the criminal act of rape. The offense is among the most severe felonies in California. The rationale used to criminalize this conduct is the assailant’s authority over you. Usually, when a person holds a position of power like a manager or employer, they diminish your ability to consent, resulting in criminal charges. Further, California statutes require employers to train supervisors, managers, and employees on sexual harassment. Therefore, in addition to the rape charges, the assailant’s employer will be subject to a sexual harassment suit.
A perpetrator will be convicted of rape charges when the prosecuting attorney proves all criminal elements. When convicted of the offense, the assailant will face incarceration in state prison for as much as eight years. Also, the court will impose felony probation in addition to or in place of prison incarceration. If you suffered a great bodily injury during the incident, the harasser would face an additional 36 to 60 months in prison. Again, the offender will be required to register as a lifetime sex offender.
2) Assault and Battery
If sexual harassment escalates to physical touching or threats of physical contact, the conduct qualifies as harassment and assault and battery at the same time. The assailant will face charges for assault or battery if they take your hand and place it casually on their intimate parts. An assailant will face assault or battery charges even when their conduct is not sexual. For instance, your supervisor can decide to threaten you by pushing or doing other physical activity. If you sustain injuries from this conduct, on top of harassment, the assailant will have committed the offense of assault under California statutes. The degree of assault or battery depends on the intent of your assailant.
Note that physical contact is not necessary for the assailant to face assault charges. An attempt to offensively touch you or a threat that made you fear for your safety is enough to make the harassment a crime. If the perpetrator succeeds in touching you, that is when the offense becomes a battery.
When charged and convicted for simple battery, the offender will face a monetary court fine of no more than $2,000 and as much as six months in jail. Nonetheless, when you as the victim is a peace officer, EMT, or a public servant and you sustained injuries from the assault, the assailant will face a battery of peace officer charges, which is a wobbler.
3) False Imprisonment
Also called unlawful imprisonment, false imprisonment happens in sexual harassment incidences when the assailant restrains your freedom of movement by using force or threats. Unlawful restraint does not seem like something that happens in the workplace, but the truth is that these cases are reported. The harasser can restrain you from leaving the office, your car, or your hotel room to fulfill their desire. So, when a coworker or employer deliberately restricts your movement in a fashion that violates your rights, you should report the matter to the police for the assailant to be charged with unlawful imprisonment. Also, you can take civil action to claim damages from the responsible individuals.
When the prosecutor proves all the elements of PC 237 violation, the assailant will face misdemeanor or felony penalties. If the offense is a misdemeanor, a conviction will result in no more than twelve months in jail or a court fine of up to $10,000.
False imprisonment involving menace, force, deceit, or violence, PEN 237 violation will result in felony charges. When convicted, your harasser will face 16, 24, or 36 months in prison. Besides, the judge will impose a court fine of no more than U.S. dollars ten thousand.
4) California Stalking
Sometimes, workplace sexual harassment does not stop in the job settings. Recall, most harassment cases stem from pervasive and repetitive behavior like repeated phone calls, trolls in social media, and continuous texting. Stalking in California is defined as the intentional and malicious harassment that makes the targeted person fear for their safety or the safety of their close family. Examples of behavior that amounts to stalking include:
- Physical following of the victim
- Waiting for the victim in the parking lot
- Repeated and unwelcome messages to the victim
- Social media trolling
- Unwelcomed and continuous calls to the victim
When a colleague or manager directs any of the above conduct towards you, this is a form of sexual harassment. At the same time, it qualifies as stalking as per California statutes meaning you can report the case to the police to conduct investigations and charge the perpetrator with stalking.
The criminal penalties of stalking when the harasser is found guilty depending on the charges. For a misdemeanor, the punishment includes summary probation, twelve months in jail, or up to 1000 US dollar court fines.
On the other hand, a felony charge is punishable by formal probation, no more than five years state incarceration, or a fine not exceeding $1000. Note that when your harasser has a history of stalking, the offense is charged as a felony even if you were not the individual previously stalked.
5) Workplace Bullying
Particular sexual harassment behavior can be classified as bullying, violating the anti-bullying statutes. In California, workplace bullying is defined as constant and injurious mistreatment of one or more workers in the workplace. The conduct that amounts to bullying includes threatening behavior, verbal abuse, or sabotage work performance. Note that one incident does not amount to bullying; rather, the abuse must be repetitive. However, a single act of physical abuse or threat to your safety as the victim
For example, when a colleague continuously posts sexually belligerent commentary about you on their social media where they know your colleagues will view it, this is a form of sexual harassment that is criminal and a violation of anti-bullying statutes.
Similarly, when a supervisor or manager makes sexual advances towards you and threatens punitive job action when you object or reject their advances, this amounts to a violation of anti-bullying laws. Besides, when your supervisor gives you a negative job performance review because you turned down their request for a social date, their conduct amounts to sexual harassment and bullying. Therefore, when suing the assailant for civil damages, you should report the matter to the local law enforcement authorities. The police will investigate the assailant, and if the harassment is criminal, charges will be filed.
6) Child Pornography
Sexual harassment in the workplace can consist of offensive visuals or pornographic materials. When the gross visuals contain videos of underage persons, the assailant and the employer will be charged with violating child pornography laws.
Child pornography in California is a wobbler, meaning upon conviction, your assailant will face either misdemeanor or felony penalties. Misdemeanor penalties include two thousand dollars in court fines or twelve months in county jail. For a felony, the punishment is no more than eight years prison incarceration and court fines of as much as one hundred thousand dollars. Further, the defendant will be required to enter the sex offender register.
Victim’s Rights Under the Law
Workplace sexual harassment is a violation of your rights. Unfortunately, when these cases amount to criminal acts, the prosecution finds it challenging to prove that the defender is guilty beyond reasonable certainty. The reason being the evidence available is usually your statement against that of the harasser. Proving a claim in a civil court is also a challenge. Apart from relying on circumstantial evidence, the law allows you to give your employer ample time to solve the issue unless they had actual notice of the assailant’s conduct.
Luckily, Title VII protects you from any retaliation from the supervisor or employer for reporting the sexual harassment incident to the authorities. Therefore, fear of retaliation should not prevent you from reporting the matter to the authorities.
Find a Los Angeles Criminal Lawyer Near Me
When you believe you are a victim of a crime after harassment at work, do not hesitate to report the matter to the authorities and talk to a criminal defense lawyer. Unlike a civil harassment suit you pursue on your own, criminal charges are investigated and prosecuted by the government saving your time and resources. You are not powerless to confront sexual harassment, and if you need information on the action you should take, talk to a criminal lawyer. At the Los Angeles Criminal Lawyer, we are available to address any questions you have on whether particular sexual harassment behavior amounts to a crime. Contact us today at 310-502-1314 for a phone or face-to-face consultation in Los Angeles.
