Could Sexual Harassment Laws Be Stronger?

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As stories about Hollywood heavyweights who use their wealth and status to sexually harass less powerful employees continue to flood our news feeds, we are reminded just how widespread the issue is. It’s unsettling considering there are multiple laws designed to protect employees from such workplace abuse. If you’ve come to this site with questions about sexual harassment, be sure to visit our sexual harassment page.

While there are some good laws protecting employees from sexual harassment on the job — particularly in California — those of us in the legal profession know these laws could be stronger.

Despite Legal Protection, Workplace Harassment Remains a Persistent Problem

In June of 2016, the Equal Employment Opportunity Commission (EEOC), the federal body charged with enforcing civil rights laws, made public some disturbing revelations in its study of workplace harassment. According to the study’s authors, nearly 33,000 of the 90,000 complaints received by the EEOC in 2015 included at least one allegation of workplace harassment. The report went on to explain however, that cases of harassment largely go unreported. Common responses of persons who experience sexual harassment include avoiding the harasser, as well as downplaying, or even enduring the harassment.

“Roughly three out of four individuals who experience harassment never even talked to a supervisor, manager or union representative about the harassing conduct,” the report noted.

While the report made several recommendations on how to better understand harassment in the workplace, including conducting more academic research and development of a national poll to measure the prevalence of workplace harassment, there are those who have asked whether or not the nation’s laws are strong enough to deal with the issue.

A Prominent Legal Professors’ Take on the Law

Recently, University of California Berkeley School of Law Dean Erwin Chemerinsky penned an Op-Ed for the Sacramento Bee that discussed whether or not federal law did enough to prevent harassment. His main argument in the editorial was that federal law, specifically Title VII of the 1964 Civil Rights Act, falls short of its intended purpose. His article began by pointing to the prevalence of the problem, which doesn’t only affect the film industry. He cited a recent story in which more than 140 women in Sacramento including: legislators, Capitol staff and political consultants, signed a letter describing a “pervasive culture of sexual harassment.”

Chemerinsky then focused on potential deficiencies in Title VII, beginning with the law’s language, which doesn’t specifically prohibit sexual harassment. Rather, the law prohibits discrimination on the basis of a person’s sex. It took a 1986 Supreme Court ruling to include sexual harassment under the aegis of sexual discrimination.

Although the courts now recognize harassment as unlawful, Chemirinsky noted that the federal law only holds the employer financially liable in cases of sexual harassment, not the harasser directly. The law could be made stronger, he argued, by allowing victims of harassment to sue their harassers directly (CA law permits this – see below).

“The possibility of suits against companies obviously has proved insufficient to prevent sexual harassment. Making the harasser personally liable for money damages under federal law could make a difference,” Chemirinsky argued.

Additionally, Chemirinsky pointed out that most sexual harassment lawsuits end in settlement. With settlements, come confidentiality agreements preventing the harassed victim from telling his or her story publically. This has the effect of concealing the harasser’s behavior, thereby making it easier for the deviant behavior to continue in the future.

Luckily for Californians, there is another route for combating the scourge of workplace sexual harassment aside from Title VII. And while not perfect, the alternative has a few more teeth.

Federal Law Isn’t the Only Option for Fighting Sexual Harassment

While it’s clear that improvements could be made in order to provide more federal protection to American workers, it’s important to remember that California has a state law that also protects employees from sexual harassment. Known as the Fair Employment and Housing Act (FEHA), the state law closely mirrors the federal law. However, in many cases, California employment attorneys prefer to use the state law when filing lawsuits, as it has a few advantages over the federal law. For instance, there is a section of the state law that specifically allows a victim of sexual harassment to sue the harasser. Government Code §(j)(1)(3) states:

“An employee…is personally liable for any harassment prohibited by this section that is perpetrated by the employee, regardless of whether the employer or covered entity knows or should have known of the conduct and fails to take immediate and appropriate corrective action.”

Additionally, state law protects workers over the age of 40 from discrimination (Title VII doesn’t). This could be of help in certain sexual harassment cases.

Unlike the federal law, which only applies to companies employing 15 or more workers, the state law can be used against companies employing as few as one person.

Contacting a Lawyer

The laws against sexual harassment and other types of discrimination could be stronger. Thankfully, we live in a state that takes these types of problems seriously and provides some of the strongest protections for employees nationwide.

If you believe you have suffered sexual harassment or some other type of discrimination while on the job, it’s important that you discuss the issue with a qualified employment attorney. There is usually a statute of limitations for filing a case dealing with this type of unlawful behavior, which can vary between public and private companies. Discussing the issue with an attorney will allow you to determine whether a case is strong enough to pursue legal action. Consult with an attorney now, so that you can make a decision on how to proceed as quickly as possible. You don’t have to suffer in silence. You can fight back.

If you have questions about California’s anti-sexual harassment laws, or other employment law issues, contact this office for more information.

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