June 2, 2020

The California Fair Employment and Housing Act (“FEHA”) [Gov. Code § 12900, et seq.] prohibits discrimination and harassment against an employee based on sex (among other things), and also prohibits retaliation for complaining about discrimination and/or harassment.  As a matter of public policy, the FEHA recognizes the need to protect and safeguard the right and opportunity of all persons to seek and hold employment free from discrimination, harassment, and retaliation.  [Gov. Code § 12920.]  The California state legislature has directed that the FEHA be construed liberally so as to accomplish its purposes.  [Gov. Code § 12993. ]  Moreover, the California Supreme Court has specifically held that one’s right to be free from discrimination and harassment in the workplace is “fundamental.”  [Brown v. Superior Court (1984) 37 Cal.3d 477.] There are two types of sexual harassment – hostile work environment sexual harassment, and quid pro quo sexual harassment.  This article addresses hostile work environment sexual harassment, which is far more prevalent than quid pro quo harassment.

To state a valid case of “hostile work environment” sexual harassment under the FEHA, a plaintiff must allege: 1) She or he was subjected to unwelcome sexual advances, conduct or comments; (2) The harassment complained of was based on sex; and 3) The harassment was “so severe or pervasive” as to “alter the conditions of the victim’s employment and create an abusive working environment.”  [Meritor Sav. Bank v. Vinson (1986) 477 U.S. 57, 67.] Hostile work environment harassment generally occurs when the plaintiff’s work environment is made hostile or abusive by sexual misconduct . [Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1045.] Hostile work environment sexual harassment cases may involve various forms of verbal and physical conduct, of both a sexual or nonsexual nature, which have the purpose or effect of creating a hostile or offensive work environment.  [Faragher v. City of Boca Raton (1998) 524 U.S. 775, 789.]

Offensive comments alone may cause an employee’s work environment to be sufficiently hostile to constitute actionable harassment if they are pervasive enough to interfere with the reasonable victim’s work environment.  A claim that the statements were “jokes,” or that the harasser was “just kidding” is not a defense.  [Birschtein v. New United Motor Mfg., Inc. (2001) 92 Cal.App.4th 994, 1002; see also, Lipsett v. University of Puerto Rico (1st Cir. 1988) 864 F.2d 881, 905.]  Repeated behavior of staring at a woman, and leering at a woman’s breasts have also been held to constitute hostile work environment harassment.  [Birschtein v. New United Motor Mfg., Inc. (2001) 92 Cal.App.4th 994, 1002; Billings v. Town of Grafton (1st Cir. 2008) 515 F.3d 39, 50.]

In an action for sexual harassment under the FEHA brought by a secretary against a law firm and a partner in a law firm, the court held that evidence supported the jury’s finding that the partner sexually harassed the secretary, where, among other things, there was evidence that the partner reached into the secretary’s breast pocket, made groping gestures, and quizzed her about the “wildest things she had ever done.”  The secretary testified that the partner’s conduct left her petrified, angry, and confused, and made it difficult for her to concentrate on her work.  The court held that the evidence supported the finding that the partner’s conduct unreasonably interfered with the secretary’s work performance and/or created an intimidating, hostile or offensive working environment.  [Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th 1128.]

In order to render the employer liable for hostile work environment harassment, a plaintiff must generally prove that the employer knew or should have known about the harassment and failed to take prompt remedial action.  [Gov. Code § 12940(j)(1).]  However, under the FEHA, an employer is strictly liable for workplace harassment by a supervisor, and may be liable for punitive damages as well.  [State Dept. of Health Services v. Sup. Ct. (McGinnis) (2003) 31 Cal.4th 1026,1042; Myers v. Trendwest Resorts, Inc. (2007) 148 Cal.App.4th 1403, 1420; Gov. Code § 12940(h)(1); Civ. Code § 3294; Kelly-Zurian v. Wohl Shoe Company, Inc. (1994) 22 Cal.App.4th 397; Fisher v. San Pedro Hospital (1989) 214 Cal.App.3d 590.]

Additionally, employers have an affirmative duty to take all reasonable steps necessary to prevent discrimination and harassment from occurring.  [Gov. Code § 12940(k).] Section 12940(k) creates a separate statutory tort action with the usual tort elements (duty of care to plaintiff, breach of duty, causation, and damages).  [Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 286.]

Once an employer learns of a sexual harassment complaint, an employer has a duty to conduct a prompt and fair investigation to determine whether the complaint is justified.  [Swenson v. Potter (9th Cir. 2001) 271 F.3d 1183, 1193; Baldwin v. Blue Cross/Blue Shield of Alabama (11th Cir. 2007) 408 F.3d 1287, 1303.]  This requires much more than simply asking the harasser if he or she did what has been alleged.  An employer should gather any relevant evidence, including incidents of sexual harassment directed toward other employees by the alleged harasser.  The employer should also interview not only the complainant and alleged harasser, but also any percipient witnesses.  If, after a proper investigation, sexual harassment is found to exist, the employer has an obligation to take proper remedial action.  This can include, among other things, suspension or termination of the harasser’s employment and reimbursement of any expenses the victim incurred as a result of the harassment.  (Click on the links below to read Eskridge Law’s articles titled “Sexual Harassment – Proper Remedial Action” and “Investigation of Sexual Harassment Complaints.” )

Sexual Harassment – Proper Remedial Action
Investigation of Sexual Harassment Complaints

Above all, employers should seek the advice of an experienced employment law attorney to guide them through such a delicate investigation.

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This article is based on the law as of the date posted at the top of the article.  This article does not constitute the provision of legal advice, and does not by itself create an attorney-client relationship with Eskridge Law.