Sexual Harassment

Harassment laws apply to employers with one or more employees; or any entity receiving the services of one or more independent contractors. With harassment, an individual or worker in an organization can be held personally liable. With discrimination generally the company or employer is held liable. For example, when an individual supervisor recommends unequal pay for a woman, it is the employer who is going to be carrying out the supervisor’s decision and the employer is liable. With harassment the harasser within the company may be sued in their individual capacity. When providing harassment prevention education, remind employees and contractors that they have individual liability for harassment.

California Sexual Harassment Training: This law is unique to California. If a company has fifty or more employees they must provide two hours of sexual harassment training, every two years, to anyone who is broadly defined as a supervisor. If a new supervisor comes into a company, they have to be trained within six months of starting their supervisory position. If a company is based out of state, but has supervisors working in California, those supervisors must be trained pursuant to California law.

California has strict liability for sexual harassment. Meaning there is no defense to proven sexual harassment under California’s FEHA statute. However, in California, under the legal concept of “Avoidable Consequences”, if an employee could have avoided the negative consequence arising out of the harassment, that may be determined not to be the employer’s fault. A California employer may reduce damages for harassment claims by showing, 1.) The company took reasonable steps to prevent and correct sexual harassment; 2.) And the employee unreasonably failed to use the preventive measures provided by the company; 3.) And reasonable use of the employer’s procedures would have prevented some of the harm.

California has rejected a rule from the U.S. Supreme Court that applies to the situation where a woman does not complain about harassment and give her employer a chance to investigate and remediate it. The U.S. Supreme court has provided a defense for this situation. Instead, California law states a woman’s failure to complain is a limitation on her damages under an “avoidable consequences” rationale.

An employer is advised to set up policies and procedures to avoid harassment. The policy should be well publicized. An employer must promptly investigate the claim and provide remedies to the claimant if appropriate. When workers are subject to harassment, they should know where to go to report it and reports of harassment should be welcomed. An employer should never threaten or retaliate against workers or employees who report harassment. Post the California Department of Fair Employment and housing’s anti-harassment poster. Educate employees about the existence of California’s Department of fair employment and housing.