In Part I and Part II of "How to Successfully Litigate Your Sexual Harassment Claim in California Courts," we discussed all the mitigating factors that play a role in successfully litigating your sexual harassment claim and/or retaliation claim. The amount of calls we receive from prospective clients at Our Orange County Law Firm regarding Sexual Harassment is concerning. In deciding whether or not it is a case that our firm will take, we examine among other things, the mitigating factors involved in their claim.
Examples of conduct committed without consent that may give rise to a viable Sexual Harassment claim, include but are limited to, the following:
1. whether or not the conduct was specifically stated, meaning that it is an element of every offense whether the conduct was committed without consent of the employee
2. Examples of instances where their consent is lacking;
A. Forcible compulsion
B. Incapacity to consent
Forcible compulsion means to compel by:
A. Physical force ; or
B. A threat, expressed or implied, that places an employee in fear of their immediate well being or losing their future employment.
The following is a hypothetical story that mimics real life events:
Courtney goes to work on a beautiful sunny Tuesday morning. She arrives at the office at 8 a.m. Upon arriving at her office she runs into Andrew, her immediate supervisor. Her supervisor asks if they can have a meeting in his office at 10 a.m. Without hesitation she responds "yes". He has weekly meetings with her to discuss the work flow and the status of projects, so she isn't expecting anything different from this meeting. She steps into Andrew's office about 2 minutes before the meeting is scheduled too begin. He closes his office door. He gives her a hug and whispers in her ear, "thank you for taking the time to meet with me." She pushed him away from her, as she no longer felt comfortable at all. He responds to her in an aggravated tone, "don't you ever push me away when I hug you."
Courtney then proceeds to continue the meeting, Andrew continues to express his desire to want to have a sexual encounter with her. Courtney explains to him that she has a husband, is wholly uninterested, and as a manager he can't be behave that way. Andrew tells Courtney that if she doesn't comply with his requests that she will not be considered for any future promotions and or salary increases.
Courtney now feels that she has been exposed to sexual harassment and/or discrimination and will not tolerate it. She has made a formal complaint to her company's human resources department and has requested an investigation of her claim. This incident fulfills the requirements for a sexual harassment and/or discrimination claim.
Some key elements that make this a viable claim are:
(A) Andrew was a manager
(B) His conduct was pervasive and unwelcomed
(C) Courtney asked him to stop and Andrew persisted regardless
A manager or supervisor in never entitled to use the power and authority of his position to coerce or leverage unlawful sexual advances to an employee.
