Usually, workplace sexual harassment is a civil rather than criminal issue. However, under certain circumstances, this kind of harassment can become a criminal offense. It is usually considered a crime when it is so severe that it violates criminal law. This blog explains the circumstances under which workplace sexual harassment can and cannot be considered a crime.
When Sexual Harassment Is a Civil Matter
Civilly, workplace sexual harassment is an action or behavior, sexual in nature, that causes an offensive, intimidating, or hostile working environment, depending on a worker's sex. It entails physical harassment, written harassment, verbal harassment, sexual advances, and visual harassment. Per this description, even a single act can qualify as sexual harassment when it is serious enough.
The harasser could be of any gender and have any relationship with the victim involved, including an indirect or direct manager, teacher, coworker, colleague, or peer.
Both state and federal laws prohibit workplace sexual harassment. The federal law that prohibits sexual harassment at work is Title VII of the Civil Rights Act of 1964. The state law that prohibits this form of harassment is primarily the California FEHA (Fair Employment and Housing Act), although there are others. Under both FEHA and Title VII, sexual harassment at work is deemed employment discrimination.
Both state and federal civil laws describe two forms of workplace sexual harassment—quid pro quo and a hostile working environment. An employee can be subject to either or both kinds of harassment.
Hostile Working Environment Harassment
Hostile working environment sexual harassment entails unwanted sexual conduct that is pervasive or severe in the workplace. The conduct, in turn, results in a hostile environment for workers subject to it by changing their employment conditions, unreasonably interfering with their work, or creating an offensive or intimidating environment. And if the sexual harassment is serious enough, it could also affect a worker's life outside work. Instances of “hostile working environment” sexual harassment include the following:
- Obscene and leering gestures directed at another worker.
- Discussing sex acts.
- Unwanted touching, for example, repeated efforts to give a worker shoulder massages, pats on the buttocks, back rubs, or pinching. Supposed accidental touching could also be deemed unwelcome touching. An example of unintentional touching is a worker brushing up against the same worker every time they pass them in the hallway.
- Unwanted sexual propositions.
- Sexually degrading invitations, suggestions, messages, or comments.
- Sharing or displaying sexually suggestive content such as objects, cartoons, posters, or pictures.
- Inappropriate jokes, slurs, comments, or epithets.
- Someone blocking or impeding a worker’s movements.
Note that an action or behavior might still qualify as hostile working environment sexual harassment even if it does not directly target an employee. For example, if an employee makes lewd jokes and comments or watches porn on their computer near another worker, it can be deemed a “hostile working environment” sexual harassment.
A single sexual harassment act may be, by itself, serious enough to qualify as illegal. Similarly, less severe conduct may be so pervasive as to qualify as illegal, even if no single incident was particularly intimidating, hostile, or offensive.
The legal standard of whether behavior can be considered “hostile working environment” harassment includes subjective and objective components. The objective component is where any reasonable individual in the victim's shoes would see the behavior as abusive, offensive, and hostile.
The subjective component is where the harasser's behavior makes the victim emotionally distressed. The sexual harassment must be proven to have disturbed the victim's mental state, impacted their ability to do their job, or otherwise impeded their health.
Ultimately, the civil court largely considers these three elements when deciding whether the behavior was sufficiently offensive, abusive, or hostile to amount to sexual harassment in the workplace:
- The seriousness of the acts.
- The frequency of the conduct.
- The surrounding context and circumstances.
Quid Pro Quo Sexual Harassment
Quid pro quo is a Latin phrase that means 'something for something' or ‘this for that.' The phrase refers to the idea of an exchange.
Therefore, quid pro quo sexual harassment entails a high-ranking employee or supervisor dishing out benefits or rewards in the workplace in return for sexual favors. The reward could be a promotion, raise, et cetera. It also involves demanding sexual favors for a fitting employment decision, such as being hired. Lastly, quid pro quo sexual harassment can also involve a threat. For example, a supervisor might warn a worker that they will be fired or face a salary cut if they fail to adhere to their sexual demands.
The harassing supervisor or employee must possess the power to fulfill their threats or promises. If the quid pro quo conduct originates from a coworker of the same standing, it is still deemed sexual harassment, but in a hostile working environment and not quid pro quo, as they cannot directly retaliate. Quid pro quo sexual harassment is deemed serious enough that one incident can result in civil liability.
While state and federal laws recognize a hostile working environment and quid pro quo workplace sexual harassment, how they apply varies. For example, state laws apply to all local, state, and private employers, while federal law only applies to employers with 15 or more workers.
Generally, state law is more protective of and favorable to workers and is thus deemed the stronger of the two laws to fight sexual harassment in California.
When Workplace Sexual Harassment Becomes a Criminal Offense
Severe workplace sexual harassment instances can be considered criminal offenses if they violate criminal laws. Most workplace sexual harassment cases do not constitute a criminal offense, but some can. Common criminal cases of sexual harassment at work involve:
- Battery and assault.
- Sexual assault.
- False imprisonment.
- Indecent exposure.
A few of these crimes are misdemeanor violations, while others are felonies. Most are sex offenses carrying additional consequences, such as registration as a sex offender, and most require bodily conduct instead of only sexual comments.
Rape refers to using threats, fraud, or force to have non-consensual sexual intercourse with another person. A criminal accusation of rape rarely arises from workplace sexual harassment cases. Generally, workplace sexual harassment does not go so far as to result in non-consensual sexual intercourse, but it can.
False imprisonment as a criminal offense involves illegally moving or confining a person against their will. Even though the term evokes images of holding a person hostage or kidnapping, the criminal offense is satisfied whenever the harasser forces the victim to go or stay in a place unwillingly. Considering this element, false imprisonment is a prevalent criminal charge that can arise from sexual harassment in the workplace.
Look at this example: Damian is Mellie's boss. He calls her into his office and starts making unwanted sexual advances. Mellie turns to go out, but Damian pushes the door shut. When Mellie demands that Damian let her out, he refuses. In this case, Damian can face criminal charges for falsely imprisoning Mellie.
A person commits indecent exposure when they willfully expose their genitals publicly to offend other people. Some states additionally mandate that the exposure be done for the person's sexual gratification.
The crime of sexual assault refers to touching another person's intimate parts without their consent and for sexual gratification purposes. Lack of consent could be because the victim resisted or could not give it. Sometimes, this crime is called sexual abuse, illegal sexual contact, or sexual battery.
There need not be sexual penetration or intercourse to be considered sexual assault—mere bodily contact suffices, whether done directly or through clothing. Since this low level of criminality entails most kinds of unwanted and offensive touching, sexual assault is another prevalent crime that arises from workplace sexual harassment.
Consider this example: Beth walks past her coworker Bob in the office and runs her hand across his penis. In this case, Bob can file criminal sexual assault charges against Beth.
Battery and Assault
Different state statutes usually handle battery and assault as one crime. Generally, however, they are separate offenses. Assault refers to an illegal attempt accompanied by the present capability to harm another person. Battery is the unlawful and willful application of force or violence to another person.
For example, Carl throwing a punch at Jack and missing is considered an assault, not battery. On the other hand, Carl throwing a punch at Jack and hitting him in the face is a battery incident.
Importantly, for purposes of sexual harassment, however, battery need not cause a severe injury. Rather, the harasser only needs to touch the victim in an offensive or harmful manner and do so willfully. This makes battery and assault two of the most common crimes that can arise from workplace sexual harassment.
Consider this example: At the workplace, Chris and his friends make sexual comments and jokes about Phoebe, and then, one day, he takes the jokes too far by slapping Phoebe on her buttocks. This incident qualifies as a crime.
The stalking crime involves threatening or harassing a person to the extent that they are scared for their lives and safety and the lives and safety of their loved ones. The elements making up the crime of stalking are:
- The accused maliciously and willfully repeatedly followed or harassed the victim and
- They made credible threats, intending to make the victim reasonably scared for their lives and the lives of their loved ones.
Sexual harassment at the workplace rarely constitutes stalking. But it can, particularly if the victim and the harasser were previously romantically involved. Generally, it requires a significant number of text messages and phone calls before it is considered a legal matter, though.
When to File a Sexual Harassment Lawsuit
Just because a sexual harassment incident does not constitute criminal behavior does not imply there is no legal recourse for you. You could still bring a civil lawsuit against the person harassing you and, in certain cases, your employer.
The claim will state that you are a sexual harassment victim and that the harassment involved quid pro quo or a hostile working environment. You can file your suit under FEHA, Title VII, or both statutes. Sexual harassment lawsuits demand monetary compensation for pain, suffering, emotional distress, mental anguish, and front and back pay.
You can hold your employer responsible for sexual harassment under two circumstances. They are if:
- The harassment incident was committed by any of the workplace supervisors.
- The employer was aware or should reasonably have been aware of the sexual harassment but neglected to come up with the appropriate remedy.
If a workplace supervisor committed sexual harassment, the employer would be strictly responsible if it entailed a tangible employment action. A tangible employment action is an action that significantly changes a worker's employment status, for example, a decision involving firing, promoting, hiring, compensation, demoting, reassignments, and benefits. If the harassment did not involve a tangible employment action, then the employer will evade responsibility, but only if they can prove that:
- The victim in question unreasonably neglected the internal remedies provided.
- They took reasonable measures to correct and prevent the sexual harassment.
It is essential to hold your employer responsible if you have faced workplace sexual harassment. The employer likely has more finances to cover the settlement or sexual misconduct-related verdict than the harassing party. Obtaining legal representation and advice from an attorney is crucial.
Note that for criminal charges, only the state can prosecute the harasser. The consequences, if convicted, are time in prison, probation, the sex offender registration requirement, court fines, et cetera. Usually, the victim does not recover any monetary compensation. For civil cases, the consequences are financial. The harasser and their employer may be ordered to give the victim monetary compensation for various damages, as mentioned above.
Also, it is worth noting that whether or not the harasser is found not guilty of sexual harassment in criminal court, the victim can still file a civil lawsuit.
Find an Experienced Criminal Attorney Near Me
If you believe a workplace sexual harassment incident against you qualifies as a crime, it is time to talk to an experienced criminal attorney about filing charges. At Foos Gavin Law Firm, we will review your case and assist you in understanding your options.
If the incident is only a civil matter, we will advise you to file a claim in civil court for compensation. But if it also qualifies as a criminal issue, we will help you investigate the matter and file charges. Call us at 916-779-3500 if you have faced workplace sexual harassment in Sacramento, and we will provide you with the most appropriate legal remedy.