Sexual Harassment Standard

Always on the cutting edge, the aggressive trial lawyers at Aarons Ward fight for victims of sexual harassment.

Beginning January 1, 2019, the laws protecting employees from sexual harassment in California got stronger. There are six new changes to the law designed to protect employees from sexual harassment and other kinds of harassment in the workplace. “The purpose of these laws is to provide all Californians with an equal opportunity to succeed in the workplace.”

First, in order to win a sexual harassment case, the standard was completely changed. The law in California now says that harassment creates a hostile, offensive, oppressive, or intimidating work environment when the harassing conduct sufficiently offends, humiliates, distresses, or intrudes upon its victim, so as to disrupt the victim’s emotional tranquility in the workplace, affect the victim’s ability to perform the job as usual, or otherwise interfere with and undermine the victim’s personal sense of well-being. Government Code section 12923(a)

This is a big change. Previously, to win a sexual harassment case, the victim had to show that the harassing conduct was severe or pervasive, that a reasonable person in those circumstances would have considered the environment hostile or abusive, and that the victim thought it was hostile or abusive. Employers routinely used this language to create confusion and to mislead judges and jurors.

Now, the language is much clearer and will lead to more employees being protected from harassers in the workplace.

The changes didn’t end there.

Second, from now on the plaintiff does not need to prove that his or her tangible productivity has declined as a result of the harassment. “It suffices to prove that a reasonable person subjected to the discriminatory conduct would find that the harassment so altered working conditions as to make it more difficult to do the job.” Government Code 12923(a)

Third, even a single incident can create a hostile work environment. Before this clarification in the law, there were numerous judges and company lawyers who would try to minimize and belittle harassing conduct by seeking to quantify or add up the number to times, days, or frequency of the harassment. This would ignore how even one incident of harassment can affect and chill a person’s emotional well-being and tranquility in the workplace. No more. Now “a single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment if the harassing conduct has unreasonably interfered with the plaintiff’s work performance or created an intimidating, hostile, or offensive working environment.” Government Code 12923(b)

Fourth, employers and harassers can’t hide their harassing comments. Many times, work environments would become toxic or permeated with harassing words and actions. Unfortunately, employers tried to hide these harassing and discriminatory comments as being “stray” or claim the person who fired the employee didn’t make the harassing comments. Employers would do so in an attempt to prevent this evidence from seeing daylight – preventing judges and juries from hearing this critical evidence. No more. From now on, common sense prevails. “The existence of a hostile work environment depends upon the totality of the circumstances and a discriminatory remark, even if not made directly in the context of an employment decision or uttered by a non-decisionmaker, may be relevant, circumstantial evidence of discrimination.” Government Code 12923(c)

Fifth, sexual harassment is sexual harassment, regardless of where you work. No more can employers and their lawyers try to create different legal standards for sexual harassment for different types of workplaces. All Californians are entitled to work in a place free of sexual harassment. It is irrelevant that a particular occupation may have been characterized by a greater frequency of sexually related commentary or conduct in the past.

Lastly, the law in California made it clear that victims of sexual harassment get their day in court so that a jury of their peers can decide the case after hearing all the evidence and seeing the witnesses testify. The law in California confirms that harassment cases are rarely appropriate for disposition on summary judgment because hostile working environment cases involve issues “not determinable on paper;” jurors need to see and hear the testimony to make these determinations.

With all these changes in the law, our attorneys at Aarons Ward will continue to fight for justice, empower our clients, and seek to end sexual harassment and abuse in the workplace.