Can employment based sexual harassment occur even when you are not at work?
Although many believe that work-related sexual harassment is actionable only when it occurs in the workplace, California laws like California Civil Code Section 51.9 and the Fair Employment and Housing Act (FEHA) in fact offer employees broad protections from sexual harassment that occurs outside of the workplace.
California Civil Code Section 51.9 creates a cause of action for sexual harassment that occurs within the context of a business or professional relationship – regardless of the location where the harassment occurred. In addition to covering employee-employer relationships, this section pertains to a wide array of professional relationships. Some examples of qualifying business and professional relationships include: physicians and patients; attorneys and clients; real estate agents and clients; landlords and tenants; and teachers and students.
Under Section 51.9, sexual harassment is defined as pervasive or severe unwanted sexual advances, solicitations, sexual requests, demands for sexual compliance, and other verbal, visual, or physical conduct of a sexual nature. In other words, the harassment must be extensive and extreme.
In order to succeed on a Section 51.9 claim, the employee must also have suffered an economic loss or a personal injury, like emotional distress, as a result of the harassment. Considering the nature of harassment must be severe and unwanted, victims of sexual harassment more often than not are able to satisfy the damages requirement of Section 51.9.
A second protection in California is the Fair Employment and Housing Act (FEHA), which protects employees from sexual harassment outside of work using a varied approach. Rather than monitor professional and business relationships as Section 51.9 does, FEHA instead requires employers to prevent harassment in the workplace and to guard against the creation of a hostile work environment. Thus, an employer’s failure to prevent harassment and hostile work environments is an actionable violation of FEHA.
Under FEHA, conduct outside of the workplace falls within the scope of an employer’s responsibilities to its employees when such conduct affects the working environment. Employees are subjected to hostile work environments when they endure harassing and/or discriminatory behavior that is so pervasive or severe that it interferes with the employee’s ability to perform their job duties. Unwelcome sexual advances, demands, and verbal and physical conduct are harassing behaviors, and they may affect an employee’s work environment and their respective ability to work even if the harassment occurs outside of work. In such an instance, the employer is required by FEHA to prevent sexual harassment.
Once an employee makes a complaint, FEHA requires employers in California to investigate the complaint, stop the harassment, and protect the employee. Supervisors are also required by FEHA to report complaints they receive regarding conduct between two employees, even if the conduct occurs offsite or after hours.
California law offers strong protections to the employees who make up this state’s workforce. Restrictions and responsibilities imposed by CA Civil Code Section 51.9 and FEHA empower employees to assert their rights to a workplace free from sexual harassment – regardless of where the harassment occurs. If you are experiencing work-related harassment, contact an attorney at Makarem & Associates today for a free consultation.
