Sexual harassment could have devastating consequences for any worker. It can have an impact on an individual’s work performance, capacity to retain their job or even advance within their organization, and general physical and mental welfare. Sexual harassment is unlawful and could be the basis for an individual filing a civil suit to recoup lost compensation and benefits as well as financially punish the accountable employers.

While employees can seek compensation and relief for workplace sexual harassment, the statutes that provide these remedies don't render sexual harassment an offense. That isn't to say that harassing conduct can't also be considered an offense. In this blog, we will discuss some of the conditions in which sexual harassment can be considered a crime in the workplace.

Sexual Harassment in the Workplace

It's not always easy to tell the difference between innocent conduct and sexual harassment. In general, if you're unsure whether or not something is sexual harassment, it's a smart option to refrain from doing it. This usually entails avoiding sexual offers, jokes, or insinuations. However, not all offers, jokes, or insinuations are considered sexual harassment. In reality, courts have ruled that remarks "tinged with unpleasant sexual implications" are insufficient to constitute sexual harassment. Instead, courts address sexual harassment matters on a fact-specific basis. Let's have a look at it in more detail. Workplace sexual harassment is defined as:

Unwelcome or Unwanted Contact From a Coworker or Employer

Unwanted physical contact is frequently the most apparent form of sexual harassment. An employee is not permitted to physically interfere with or contact another colleague based on the individual's gender or sexual inclination. Things become complicated when a type of contact can be interpreted in numerous ways. In some situations, touching a colleague's shoulder, for instance, could appear sexual, but not in others.

Unfortunately, there is no clear-cut standard to identify which types of touching are acceptable and which are not. Instead, judges consider all of the circumstances surrounding each incident. Touching or any form of physical contact will be deemed illegal if it's both unwelcome and harsh, or if it's pervasive enough to establish an abusive workplace environment. Several forms of touching or contact that would be considered unlawful sexual harassment include:

  • Crotch-grabbing

  • Touching genitals

  • Mouth-to-breast contact

  • Touching a colleague's breasts repeatedly

  • Rubbing thighs

  • Touching the behind of a coworker

However, not all sexual contact or touches in the workplace are considered sexual harassment. According to federal court rulings, a single incident of breast-grabbing isn't sufficient to constitute illegal sexual harassment. If the lawsuit had been filed in a California court, it is unclear if the outcome would have been the same. However, the California Court of Appeal ruled that two distinct incidences of an employer or supervisor rubbing his arm over a coworker's breast were not enough to prove illegal sexual harassment.

Furthermore, individual incidences of explicit sexual horseplay would not constitute sexual harassment, even though they occur infrequently over time. In these instances, the courts acknowledge that the behavior was inappropriate, but they find that it lacked the pervasiveness or severity required to be classifed as sexual harassment. It's still possible that the lawsuit's underlying action would have been charged successfully under a different approach, such as battery or assault.

The truth is that every worker has distinct preferences when it comes to their physical comfort. Some employees enjoy hugging, while others dislike it. If you're unsure whether or not something is appropriate, it's preferable to avoid it completely.

Employment and Work-related Opportunities Conditioned on Sex

When individuals have different levels of authority, it could feel like a sexual advance is required. When a manager, for instance, offers sex to his or her coworker or subordinate employee, the latter would assume that their employment is dependent on their acceptance of sexual contact. The obligatory nature of manager-employee relationships raises the critical question of whether or not sexual encounters between the 2 parties are consenting.

As a result, supervisors, managers, and all employers in California are prohibited from requiring staff to consent to or condone unwanted sexual demands as a requirement of employment. In most cases, these interactions are implicit. Employers or managers are rarely courageous enough to make a work-related reward conditional on sexual advances.

When Sexual Comments are Unwelcome

According to the court, sexual advances should be unwanted to be considered illegal sexual harassment. Even though a sex-related remark is not a sexual advance aimed at an employee, the courts have found that a hostile work environment could exist. However, the statements should still be unwelcome.

The court system tends to favor the purported victim when interpreting "unwelcome." They have developed a "rational victim" criterion to determine if the remarks are harsh or pervasive enough for a rational individual of the victim's gender. "Unwelcome" would be evaluated from the victim's standpoint under this criteria. To stop the offensive behavior, there could be no need for an objective request. So, even if a harasser is unaware that his or her behavior is inappropriate, it would still be considered sexual harassment.

According to these standards, even boasting about previous sexual experiences, cracking sexual jokes, or recurring double entendres would constitute sexual harassment. Furthermore, even when the employee victim decides to indulge in sexual acts, sexual statements could still be unwanted. Just because someone isn't forced to take part in sexual activity doesn't mean they would like to.

Making Unwelcome Sexually Derogative Comments

Harassment includes sending or uttering "epithets, insulting comments, or slurs" to someone. These can comprise any comments demonstrating animosity towards a certain protected group. Remarks that demonstrate sexism by using derogatory, gender-specific terminology have been ruled to be illegal sexual harassment.

Courts have ruled that even brutal practical jokes, while not sexual activity, could be declared sexual harassment. For instance, if a supervisor makes insulting comments directed exclusively at a female or male staff member, and the statement makes use of gender-specific demeaning terminology, it could be considered serious. This is because the statement included gender, which constitutes sexual harassment. A similar degree of protection could presumably apply to statements directed at people of similar sexual orientations or identities.

Displaying Sexually Explicit Images in the Workplace

California employment laws prohibit "derogatory drawings, cartoons, or posters" based on sex. To establish sexual harassment, the courts have directed that the visuals should be aimed at the accused victim or towards a certain gender. Visual pictures, like other forms of sexual harassment, should be either sexual in nature or hostile in nature, depending on the sexual identity. They should be pervasive, unwelcome, and harsh. A staff member who demands sexually explicit texts cannot subsequently allege sexual harassment since such messaging is not unwelcome.

Sexual Harassment Doesn't Require a Sexual Motive

The term "sex" is defined broadly under California legislation. It involves harassment based on an individual's pregnancy, childbirth, sexual identity, or pregnancy-related health condition. Therefore, harassing someone based on their sexual identity, even if there is no sexual motive, can be considered illegal sexual harassment.

In addition, the courts have stated unequivocally that sexual harassment doesn't have to involve lewd acts, sexual desires, double entendre, or an explicit sexual environment. It could be a negative action aimed at an employee based on a feature that matches the broad description of "sex" under an unfriendly work environment hypothesis. If, on the other hand, the employee alleges a quid pro quo notion of sexual misconduct, a sexual intention is necessary. This is because a sexually based employment offer or threat entails a sexual purpose.

Furthermore, California law forbids harassment for a variety of illegal reasons. Sexual harassment is, of course, one of the most widespread kinds of harassment. But it's not the only type of outlawed harassment. Other forms of harassment aren't often classified as "sexual harassment," but they're nonetheless illegal. An individual cannot be intimidated or harassed based on any of the following features:

  • Mental or physical impairment

  • Marital status

  • Religious beliefs

  • Race, nationality, color, ancestry, or genetic information

  • A medical condition

  • Sex, gender, gender identity, gender expression, or sexual orientation

  • Age

  • Veteran or military status

Since an employee cannot alter these aspects, staff members that feel they are the victim of discrimination for these reasons should bring their case alleging hostile work environment harassment to light.

When Does Workplace Sexual Harassment Become a Crime?

In some cases, like rape, it could be evident to a sexual harassment victim that the act they've witnessed is not only unlawful workplace discrimination but also a crime. It could not be as obvious in other cases, like when a staff member has been harassed verbally. Whether or not your actions at work are regarded as illegal depends on the criminal statutes and whether or not your actions satisfy the description of an offense under those statutes. Below are examples of the types of offenses that could be committed under California law when an employee or staff member is sexually harassed at a workplace.

Assault

A harasser's physical contact with their victim doesn't always have to be sexual. Harassing co-workers or employers could try to frighten their victims by striking, pushing, or engaging in other physical acts. If a staff member is wounded as a result of the harasser's actions, the accused could be charged with assault under California statute. Assaults can range in intensity based on the assailant's motive, whether he or she used a firearm or weapon, and how severely the employee was harmed.

According to California law, PC 240, an assault is defined as "an illegal effort, combined with a clear motive, to inflict violent harm on the body of another person." In this case, the "constituents" of the assault crime are as follows:

  • The employer or supervisor did something that, by its very nature, would almost certainly result in the use of force against the employee or subordinate staff

  • The harasser did it on purpose and with full knowledge of what he or she was doing

  • When the employer or supervisor took action, he or she knew circumstances that would compel a reasonable individual to conclude that the act could lead to the use of force against the employee or staff member

  • When the employer or coworker took action, he or she had the power and clear motive to use force against the worker at the time

Stalking

Sexual harassment is normally characterized by a series of activities, such as persistent phone calls and/or text messages. This form of repetitive behavior can fall under the description of "criminal stalking." Stalking is defined, under California PC 646.9, as harassing, following, and threatening a person to the extent that the individual fears for his or her life.

Physically tracking the victim, making repeated unwelcome messages and calls, or following the employee's internet activity are all examples of stalker behavior. Even apparently innocent acts like delivering a gift can be used as evidence in a stalking lawsuit if the complainant's safety is reasonably threatened as a result of the harasser's actions. It's worth noting that stalking can only be charged if:

  • The employer or a coworker knowingly and maliciously harassed or followed the worker willfully, maliciously, and persistently

  • The harassing coworker made a serious threat to put the other employee in reasonable fear for his or her life and/or the safety of the victim's close family

It is important to note that an individual will not be convicted of stalking if he or she is involved in an activity that is protected by the constitution.

Unlawful Imprisonment

Unlawful imprisonment, also termed false imprisonment, might not seem to apply to sexual harassment at work, but it does in specific cases. Simply put, false imprisonment is the illegal detention of another individual without their consent. An individual commits this crime under California law when they purposefully restrict another person's movement in a manner that significantly impairs their freedom.

As a result, the person could be confined or relocated to different locations as a result of the limitation. In the event of workplace sexual harassment, the harassing coworker or employer could verbally or physically threaten the victim into staying in a car, a hotel room, or an office to put them through inappropriate conduct.

Rape and Sexual Battery

You're probably aware that forced sexual activity without an individual's consent is regarded as

rape and is punishable by law. California PC 261 defines rape as having non-consensual sexual contact with another individual through the use of threats, force, or deception. Other types of sexual engagement with a person, such as forcible touching without their consent, are also prohibited by law. Forcible touching occurs when the perpetrator intentionally and coercively touches the complainant for their pleasure or to humiliate and/or mistreat the victim. It should be noted that touching could occur on top of or beneath the victim's clothing.

Sexual battery in California is defined as any form of physical contact or touching of an individual's private body parts without their assent, whether that touching occurs above or below the victim's clothing with the specific intention of sexual gratification, sexual abuse, or gratification.

Pornography

Sexual harassment in the workplace frequently incorporates offensive images. If the images or visuals contain child pornography, the harassing employee, as well as the employer, could face charges for violating child pornography statutes. California PC 311.11 makes it illegal to have control of or possess any child pornography created by a juvenile under the age of eighteen.

Bullying in the Workplace

Bullying in the workplace is described as repeated, demeaning harassment at work. Bullying could take many different forms, like:

  • Epithets and verbal abuse

  • Intimidation or humiliation

  • Interference with a victim's profession or job that has nothing to do with the legitimate organizational interests of the employer

California has no explicit anti-bullying legislation. However, under the California Fair Employment Act, employees in California do have the right to sue their employer or bullies if the intimidation turns into workplace discrimination or harassment.

When workplace bullying is centered on a protected group to which the complainant belongs, it could be considered harassment or discrimination. This implies that employees can legally intervene when the bullying or menace surpasses the boundary into sexual harassment or fulfills the legal description of non-sexual discrimination or harassment based on protected traits such as race, gender, or ancestry, to name a few.

Find a San Jose Criminal Defense Attorney Near Me

Sexual harassment is punishable by harsh penalties under federal and state law. If you've been sexually harassed, you ought to know that you have legal options. If your sexual harassment suit is valid, you could be able to receive substantial recompense and ensure that the offender is held accountable to the rules of the statute. However, your odds of success are dependent on whether you engage an experienced lawyer with a proven track record of performance.

You are entitled to a fair trial. We at the California Criminal Lawyer Group are here to assist you. We will devise a legal strategy that is tailored to the specifics of your sexual harassment case. Our team of professionals can assist you in pursuing or defending against sexual harassment allegations. Call us today at 408-622-0204 for a free consultation and legal advice related to workplace sexual harassment in San Jose.