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Sexual Harassment
"Sexual Harassment" includes but is not limited to verbal &/or written communications in which there are statements, express or implied, in which some form of sexual advance &/or innuendo is made. For example, a request for sex or sexual relations may be deemed sexual harassment if as it is unwelcome.
In the employment context, verbal or physical conduct (behavior) of a sexual nature constitute sexual harassment when this conduct explicitly or implicitly affects one's employment, unreasonably interferes with one's work performance &/or creates a hostile, intimidating &/or offensive work environment.
Sexual harassment can occur whether the harasser is a woman or a man, and the victim does not have to be of the opposite sex. Again, in the context of the work environment, the harasser can be one's supervisor, a co-worker, an agent of the employer, a supervisor in another area, &/or even a non-employee.
Additionally, sexual harassment may occur without any financial loss to an individual, such as termination of employment to be unlawful.
Only after an exhaustive review and analysis of your personal situation, can a lawyer render an opinion regarding a potential case. There are many factual considerations and legal issues that operate to establish liability and/or damages. Often, it is not just a matter of what specific reasons were given in a case, or what an employer said or did. An attorney's role is to evaluate the real motivation for the harassment, not the stated reason. Also, there may be defenses that operate to bar recovery in full or part.
What conduct is generally not actionable?
Generally, yelling, screaming, demeaning language, or unfair workload, is not considered "unlawful" if it is based upon a personality conflict. If your supervisor treats everyone poorly, regardless of their race, religion, sex, or age, you might not have a case. Such conduct, however, will be considered illegal if the harasser is motivated by malice and/or ill will against you that is based on some protected characteristic or classification set forth above.
As your San Diego Sexual Harassment Attorneys, it is important to understand that only "unwelcome" harassment that is sufficiently severe or "pervasive" to create a hostile or abusive work environment is unlawful. Therefore, trivial or isolated harassment, even if based on some protected classification, may not be deemed unlawful. As a general rule, the more severe the incidents (i.e., physical contact is more severe than offensive language) the less frequently they need to happen before it is considered illegal. In other words, If the harassing conduct is less severe it must be regular or constant. Also, since only "unwelcome" harassment is illegal, you must make it clear to the harasser that you find his/her conduct unwanted and offensive.
What are valid defenses to charges?
There is a Statute of limitations that bars recovery if an action is not taken within a defined period of time. Depending upon the jurisdiction or theory of the case, the time period may be different. You should always consult with an attorney regarding such issues. Additionally, lack of sufficient evidence or no proof will bar recovery, as in the case of (complained) conduct that never happened. Occasionally, the complaining employee is not a credible observer.
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Samuel Spital & Associates
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San Diego, CA 92108-1642
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