We will cover this topic in this video:
- Proving a Sexual Harassment Case
- Elements of Sexual Harassment
- Element 1
- That they worked for the Employer
- Element 2: “Because of”
- Gender
- If the person is making gender-based comments (body parts, refer to gender-based names)
- If the person is targeting people of the same protected status (targeting only women)
- If the person is touching the woman inappropriately
- Element 3: “Severe or Pervasive”
- Govt. Code § 12923 changed the standard in 2019
- A single incident may suffice severely
- Touching of inappropriate body parts
- Occurred over a substantial period of time pervasive
- Not so severe, but gender-based name-calling over months or years
- Multiple drastic incidents severe
- Multiple drastic incidents over a substantial period of time severe and pervasive
- Element 4: Reasonable Person - Objective Standard
- If another woman in the plaintiff’s shoes would have felt the work environment to be hostile, intimidating, etc.
- How to prove it?
- Other women’s testimony
- Mental health expert testimony
- HR Representative testimony
- Employee Handbook
- Element 5: Plaintiff Felt - Subjective Standard
- How the Plaintiff actually felt about the situation
- How to prove it?
- Other witness testimony
- Observe Plaintiff
- Mental health expert testimony
- HR Representative testimony
- Witness statements
- Element 6: Liability
- “Supervisor” engages in the conduct = strict liability
- Govt. Code § 12926(t):
- Supervisor/agent knew or should have known and failed to take immediate/appropriate action = negligence standard
- Definition of SupervisorCACI 2525
- Proving Supervisorship
- Directing daily activities
- Assigning duties
- Discipline if fail to follow directions of supervisor
- Independent judgment?
- Shortness in time in decision making
- Shortness in time in discipline
- Did not consult with anyone
- Elements 7 & 8: Substantial Factor in Causing Harm
- Harm
- Eyewitness testimony
- Other witness testimony
- Observe Plaintiff
- Mental health expert testimony
- HR Representative testimony
- Witness statements
- Substantial Factors more than trivial or remote
- Expert testimony
- Plaintiff testimony
- Other witness testimony
- Defenses to Elements 7 & 8
- Previous psych history
- Criminal history?
- History of abuse?
- Childhood trauma (divorce, abuse, etc.)
- Prior workplace trauma
- Prior lawsuits
- Car accidents
- Bankruptcy
- Workers’ Compensation
- Other claims
- Conclusion
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