In California, sexual harassment is not a criminal offense on its own. However, certain criminal acts like stalking or sexual assault can be a part of a course of sexually harassing conduct. You can face criminal charges for those acts. Non-criminal sexual harassment in the workplace can lead to civil lawsuits being filed against the harasser and their employer.
Sexual harassment is not a crime
On its own, sexual harassment is not a criminal offense. Instead, it can be unlawful in certain circumstances, like the workplace. This would give the victim the legal right to file a civil lawsuit over the harassment.
However, serious incidents during courses of sexual harassing behavior can amount to a criminal offense.
Criminal acts in harassing behavior
Some of the most common criminal acts that are committed in the course of sexually harassing behavior are:
- stalking,
- indecent exposure,
- assault and battery,
- sexual assault, and
“It is relatively uncommon for ‘mere’ sexual harassment to amount to a crime. However, it does happen sometimes. When it does, the victim’s civil claim against their abuser and employer can grow much stronger, while the harasser could face prison time” – sexual harassment lawyer Neil Shouse
Stalking
The crime of stalking involves the following 2 criminal elements:
- you willfully and maliciously harassed the victim, or willfully, maliciously, and repeatedly followed them, and
- you made a credible threat with the intent of putting the victim in reasonable fear for their safety or for the safety of their family.[1]
Under California law, stalking can be prosecuted either as a misdemeanor or as a felony.
If pursued as a misdemeanor, a conviction would carry:
- up to 1 year in county jail,
- up to $1,000 in fines, and/or
- misdemeanor probation.[2]
If prosecuted as a felony, as it would be if you violated a restraining order or have a prior conviction for stalking, it would carry:
- up to 5 years in state prison,
- up to $1,000 in fines, and/or
- felony probation.[3]
Victims can also sue their stalker in civil court.[4] You can recover both compensatory damages as well as punitive damages.
Indecent exposure
Indecent exposure can also happen during a course of sexual harassment. The criminal elements of this offense are:
- you willfully exposed your genitals,
- you did it in the presence of someone who might reasonably be offended or annoyed by it, and
- you intended to direct public attention to your genitals in order to either sexually gratify yourself, or to sexually offend someone else.[5]
First-time offenses are generally misdemeanors that carry up to 6 months in jail and $1,000 in fines.[6] Subsequent offenses are generally felonies that carry up to 3 years in prison and $10,000 in fines.[7]
You will also have to register as a sex offender for at least 10 years.[8]
Assault and battery
In the state of California, the crime of assault (sometimes referred to as assault and battery) involves the following 4 elements:
- you did something that would probably result in the direct application of force on someone else,
- you did it willfully,
- when you did it, you were aware that a reasonable person would believe that doing it would directly and probably result in the application of force on that person, and
- when you did it, you had the present ability to apply force to that person.[9]
That application of force can be any contact that is harmful or offensive. Even the slightest contact can amount to assault if it was done in a rude of offensive manner. There does not need to be a physical injury.
Because of this low standard for the force necessary to constitute assault, the employment law attorneys at our law firm have found that assault is one of the most common criminal offenses to happen in the context of workplace sexual harassment. However, many victims of the harassing behavior are not aware of this.
For example: Chris strokes his coworker Judy’s hair as a part of a sexual joke.
In California, assault is a misdemeanor. A conviction carries up to 6 months in jail and a fine of up to $1,000.[10] Probation instead of jail is common.
Sexual assault
Sexual harassment can rise to the level of sexual assault with surprising frequency. Also called sexual battery in California, this crime has the following elements:
- you touched someone else’s intimate part,
- you did it against that person’s will, and
- you did it for the specific purpose of sexual arousal, gratification, or abuse.[11]
You can commit sexual assault even if you touch someone through their clothing.
An “intimate part” is a female’s breast or anyone’s:
- anus,
- groin,
- sexual organ, or
- [12]
Most sexual assaults that happen as a part of a campaign of sexual harassment are misdemeanors. Convictions carry:
- up to 6 months in jail,
- up to $2,000 in fines, or up to $3,000 if the victim was the harasser’s employee, and
- [13]
Many people are unaware that mere sexual contact can be a crime.
Rape
Occasionally, sexual harassment includes a rape. The criminal elements of rape typically are:
- you had sexual intercourse with a woman,
- the woman did not consent to it, and
- you accomplished the intercourse through force, fear, fraud, or threats of harm or official action.[14]
Convictions carry between 3 and 8 years in prison and registration as a sex offender.[15]
Victims can also file a personal injury lawsuit against their rapist.
Workplace sexual harassment can lead to a lawsuit
While sexual harassment is not a crime, if it happens in the workplace, then both federal and California law give the victim the right to file a lawsuit in civil court.
That lawsuit can recover compensation for the victim’s:
- lost wages, including back pay, front pay and benefits,
- loss of reputation,
- pain and suffering,
- mental anguish,
- court costs,
- attorneys’ fees, and
- expert witness fees.[16]
You may even recover punitive damages and force the employer to implement:
- sexual harassment policies, and/or
- sexual harassment training.
The lawsuit can be filed against:
- the harasser, and/or
- the victim’s employer.
The employer can be held liable if:
- the harasser was a supervisor, or
- the employer knew, or should have known, about the harassment but failed to take appropriate corrective action.[17]
The sexual harassment lawsuit can be filed in:
- state court under the California Fair Employment and Housing Act (FEHA), the main state law for workplace discrimination, and/or
- federal court under Title VII of the Civil Rights Act of 1964, the main federal law for workplace discrimination.
Generally, FEHA provides better protections for workers in California than Title VII does.
Before the lawsuit can be filed, though, you would have to go through the administrative process. This involves filing a complaint with the:
- federal U.S. Equal Employment Opportunity Commission (EEOC), and/or
- California Civil Rights Department (CRD) (formerly called the Department of Fair Employment and Housing (DFEH)).
There are 2 different types of harassment in the workplace:
- quid pro quo harassment, and
- hostile work environment.
Unlike in most criminal cases, there can be liability in a civil sexual harassment claim for sexual acts that are not physical, such as:
- slurs,
- social media posts,
- leering,
- jokes of a sexual nature, and/or
- text messages that create an offensive work environment.
Quid pro quo sexual harassment
Quid pro quo sexual harassment is when workplace benefits are tied to sexual favors. The phrase is Latin for “this for that.”
To prove your case you would have to show that:
- you worked, was a job applicant, or was providing services for the defendant,
- a supervisory employee or one of the defendant’s agents made unwanted sexual advances or other sexual conduct,
- by words or by insinuation, favorable working conditions were made contingent on these sexual requests,
- you were harmed by this harassing behavior, and
- the supervisor’s actions were a substantial factor in that harm.[18]
Hostile work environment sexual harassment
A more common type of sexual harassment is one that creates a hostile working environment. To win a sexual harassment case based on a hostile work environment, you would have to show that:
- you were the recipient of unwelcome sexual advances, conduct, or comments,
- the harassing behavior was based in some sense on your sex, and
- it was either severe or pervasive enough to alter the conditions of your employment.[19]
California sexual harassment law’s statute of limitations
You have to file an administrative sexual harassment complaint with the CRD or the EEOC before the statute of limitations has expired.
CRD filings must be made within 3 years of the most recent incident of harassment.
EEOC filings must be made within 180 days. This is extended by 300 days if a claim is also being filed with the state CRD.
If the CRD or EEOC issues you a right to sue letter, you then have one year to file the lawsuit.[20]
Legal Citations:
[1] California Criminal Jury Instructions (CALCRIM) No. 1301 and California Penal Code 646.9 PC.
[2] California Penal Code 646.9 PC.
[3] Same.
[4] California Civil Code 1708.7 CIV.
[5] CALCRIM No. 1160 and California Penal Code 314 PC.
[6] California Penal Code 19 PC.
[7] California Penal Code sections 290 and 672 PC.
[8] California Penal Code 290 PC.
[9] CALCRIM No. 915 and California Penal Code 240 PC.
[10] California Penal Code 241 PC.
[11] CALCRIM No. 938 and California Penal Code 243.4 PC.
[12] California Penal Code 243.4(g) PC.
[13] California Penal Code 243.4(e)(1) PC.
[14] CALCRIM No. 1000 and 1005, and California Penal Code 261 PC.
[15] California Penal Code 261 PC.
[16] California Government Code 12965(b) GOV.
[17] Burlington Industries Inc. v. Ellerth, 118 S.Ct. 2257 (1998).
[18] California Civil Jury Instructions (CACI) No. 2520.
[19] Hughes v. Pair, 46 Cal.4th 1035 (2009).
[20] California Government Code 12960 GOV.
