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Why is sexual harassment so hard to prove?

No matter where you work in California, days probably exist – maybe many of them – when you wish you did not have to be there. Maybe the problem is a nasty boss. Maybe a cranky coworker. Maybe the lunchroom that seems to breed nothing but lewd jokes and strange little green or black spots in the microwave.

However negative your workplace situation may be, however, it seldom rises to the level of discrimination, harassment or a hostile work environment. These words get bandied about quite regularly these days, but bear in mind that they represent legal words as well. Legal words that require a multitude of proof in order for you to win a sexual harassment or workplace discrimination case.

Types of sexual harassment

As reported by CNN, federal law, California state law, and the California Fair Employment and Housing Act forbids employee discrimination and harassment against you as an employee based on your gender and other things. With regard to sexual harassment, two types exist: hostile work environment and quid pro quo. By far, hostile work environment represents the larger number of cases plaintiffs file. A lot of them, however, go nowhere because, as the U.S. Supreme Court has said, discrimination laws never have, and never can, provide a “general civility code for the American workplace.”

Quid pro quo is Latin for “this for that.” In these types of cases, you must prove that your boss or someone else higher up the corporate ladder than you made unwanted sexual advances toward you or displayed unwanted sexual conduct against you, threatening to demote you or not to promote you unless you acquiesced.

He said, she said

The reason why any type of sexual harassment case is so hard to prove is that you must have considerably more than a “he said, she said” situation. You need hard evidence. And do not count on your performance reviews to supply it. Depending on who testifies to their content, you can again have a word against word argument. You allege they show a sexual harassment cover-up. Your employer alleges that they show you were an under-performing employee. The jury will decide whose testimony is more credible.

It goes without saying that if you believe you are the victim of workplace sexual harassment, you should start keeping good records as soon as possible. You should also report it – in writing – to the appropriate boss, supervisor or human resources person. California law requires all employers to take all reasonable steps to prevent workplace harassment of any sort. It also requires them to investigate all employee harassment claims.

This is general educational information and not intended to provide legal advice.

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