To prevail on a sexual harassment claim in California, an employee must show that the alleged harasser’s conduct was sexual, unwelcome, and offensive to the employee and objectively offensive to a reasonable person.
Recently, Sherman Law Corporation has been handling a number of mutual sexual conduct cases where the alleged harasser contends that all of the conduct was mutual, welcome, and not at all offensive to the employee.
Here’s what California employers need to know about these types of employment litigation cases.
Sexual Harassment Claims in the California Workplace
In order to prevail in a sexual harassment in the workplace claim, the employer must show that the sexual conduct was mutual, welcome, and not at all offensive to the employee. This is shown by:
- Introducing photographs and videos depicting a happy plaintiff posing with the alleged harasser smiling
- Written communications demonstrating mutually joking that are inconsistent with claims that the alleged harasser’s conduct is unwelcome or offensive
- Cards and gifts from the complainant to the accused that are inconsistent with claims that the alleged harasser’s conduct is unwelcome or offensive
- Statements by other workers corroborating the alleged harasser’s position based on what they observed or participated in
What Happens If The Employer Can Provide This Evidence?
Unfortunately, the employer cannot obtain a dismissal as a matter of law because the plaintiff employee’s testimony will be that all such conduct was unwelcome and offensive so a jury or arbitrator (if there is an arbitration agreement) must hear the evidence and rule.
The plaintiff employee will claim that s/he was forced to participate. If the employer wins and the judge/arbitrator determines the plaintiff employee’s claims were frivolous, the employer may be awarded its attorneys’ fees and costs from the employee.
While this is good in theory, it is a long, costly process that an employer is unlikely to collect from the employee.
These claims usually resolve by mediation where a settlement is reached after providing the evidence to refute sexual harassment.
How Can An Employer Avoid These Type Of Claims?
Here are some tips we recommend to avoid these types of claims:
- Training by Sherman Law Corporation on the financial and emotional cost of defending mutual claims including the toll on spouses and significant others, and
- Discipline the accused for inappropriate behavior. Even if the conduct does not rise to the level of unwelcome sexual conduct that creates a hostile work environment, the conduct is inappropriate and may lead to such claims.