June 5, 2020
Some people may believe that sexual harassment is acceptable in situations where it is “part of the job.” Those people would be wrong.
An employer is not excused from its legal duty to take “all reasonable steps to prevent” sexual harassment from occurring just because the nature of the job makes sexual harassment likely. Under the California Fair Employment and Housing Act, an employer can be held liable when an employee is sexually harassed, by a supervisor, co-workers, or even a non-employee, if the employer fails to take “immediate and appropriate correction action” to alleviate the harassment. [Gov. Code § 12940(j).]
The California Court of Appeal addressed this very issue in Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53 . In Turman, the plaintiff worked as a night-shift resident monitor at a halfway house for federal and state prisoners. Part of the plaintiff’s job duties included conducting urinalysis drug testing and writing up residents for disciplinary violations like intoxication, profanity, disrespect, and fighting. The male residents frequently subjected the plaintiff to lewd and sexually offensive name-calling, sexual gestures, and sexual propositions. When she informed her supervisor about the residents’ conduct, he basically told her she should “try to be nicer” to the residents. The only advice the supervisor gave the plaintiff was to “write up” the residents less frequently. The employer did not conduct any type of investigation regarding the plaintiff’s complaint, and took absolutely no action to stop the sexual harassment.
The employer defended its actions by claiming harassment by the residents was “part of the job.” While the Court of Appeal conceded that male residents living under restricted conditions are likely to harass their female monitor, the Fair Employment and Housing Act nevertheless required the employer to take immediate and appropriate action to correct the situation.
What should an employer do in these circumstances?
1. Conduct a prompt investigation. This does not mean simply asking the alleged harassers if they did it. An employer should gather any relevant evidence, including incidents of sexual harassment directed toward other employees by the alleged harasser. The employer should interview not only the complainant and alleged harasser, but also any percipient witnesses.
Click on the following link to read Eskridge Law’s article titled “Investigating Sexual Harassment Complaints”
2. Take proper remedial action. If, after a proper investigation, sexual harassment is found to exist, discipline the employee and, if at all possible, separate the sexual harasser from the complaining victim. Do not, however, transfer the complaining victim, as this could constitute unlawful retaliation. Instead, move the harassing employee to a different location or a different shift. Proper remedial action can also include suspension or termination of the harasser’s employment and reimbursement of any expenses the victim incurred as a result of the harassment.
Similarly, if the investigation finds sexual harassment by a non-employee, take all reasonable steps to stop the sexual harassment. What can, and should, be done will vary widely based on the particular situation . If the harasser is a single vendor, for example, you could stop doing business with that vendor, or at least ban the vendor from having contact with certain employees.
Click on the following link to read Eskridge Law’s article titled “Sexual Harassment – Proper Remedial Action”
3. Take action to prevent harassment from occurring. Government Code section 12940(k) requires an employer to “take all reasonable steps necessary to prevent discrimination and harassment from occurring.” This does not mean merely having company policies and procedures in place which state sexual harassment is prohibited. An employer must take action to implement these policies and procedures, such as conducting proper training of its supervisory employees and providing a clear procedure for an employee to make a complaint.
4. Consult an attorney. Since sexual harassment claims in the workplace are extremely delicate and, by their nature, raise privacy concerns, employers should always seek the advice of an attorney. An experienced employment law attorney can guide employers through the investigation process, suggest appropriate remedial measures, and draft and help implement policies and procedures to help mitigate the risk of a sexual harassment lawsuit.
Need more information?
ESKRIDGE LAW may be contacted by phone (310/303-3951), by fax (310/303-3952), or by email (geskridge@eskridgelaw.net). Please visit our website at eskridge.hv-dev.com.
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.