Sexual Harassment: A Best Practices Primer For Employers

Sexual harassment is a form of sex discrimination. The Fair Employment and Housing Act (FEHA) defines sexual harassment as harassment based on sex or of a sexual nature; gender harassment; and harassment based on pregnancy, childbirth, or related medical conditions. The definition of sexual harassment includes many forms of offensive behavior, including harassment of a person of the same gender as the harasser.

The Equal Employment Opportunity Commission (EEOC) defines sexual harassment as “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature” (CFR sec. 1604.11 (a)).

Such conduct constitutes sexual harassment when:

• Submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment;

• Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual;

• Such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment (CFR sec. 1604.11 (a)).

Examples of Sexual Harassment

1. Unwanted sexual advances;
2. Offering employment benefits in exchange for sexual favors;
3. Actual or threatened retaliation ;
4. Leering; making sexual gestures; or displaying sexually suggestive objects, pictures cartoons or posters;
5. Making or using derogatory comments, epithets, slurs, or jokes;
6. Sexual comments including graphic comments about an individual’s body; sexually degrading words used to describe an individual; or suggestive or obscene letters, notes, or invitations;
7. Physical touching or assault, as well as impeding or blocking movements;
8. Staring, even if not done in a sexually suggestive manner (Birschtein v. New United Motor Manufacturing, Inc., 92 Cal.App.4^th 994(2001);
9. Obscenities, particularly if accompanied by sexual jokes (DFEH v. Sigma Circuits, Inc., FEHC No. 88-14 (July 28, 1988);
10. Offensive emails or cell phone text messages;
11. Bullying, yelling at or otherwise intimidating employees that is gender based or creates a disproportionate impact on that gender.

Two Types of Sexual Harassment

• Quid Pro Quo (“this for that”)

This type of harassment occurs when a person with higher power in the workplace, such as a manager or supervisor, seeks sexual favors as a condition of employment, including adverse employment actions such as demotion, loss of benefits or termination.

• Hostile Environment

A hostile work environment occurs when someone in the workplace creates an objectively offensive and/or abusive environment that is subjectively perceived by the victim as abusive, which interferes with the victim’s ability to perform his or her job.  However, the harassing conduct must be sufficiently pervasive and severe to rise to the level of a hostile work environment. The harasser’s conduct will be evaluated from the objective of a “reasonable” person. The Ninth Circuit U.S. Circuit Court of  Appeal has held that that offensive conduct does not need to be sexual in nature to create a hostile work environment, if the conduct such as shouting, using obscenities, and/or invading an individual’s personal space is directed at one particular group in the workplace. (Christopher v. National Education Assoc. 422 F.3d 840 (9^th Cir. 2005).

Employer Liability

In general, employers are liable for harassment that occurs on the premises or that is associated with an employment relationship.

• Harassment by Supervisors

Under California law, employers may be strictly liable for a supervisor or manager’s sexual harassment of a subordinate. This means an employer may be liable even though the employer was not aware of the fact that the harassment was occurring.

• Harassment between Co-Workers

An employer is liable for harassment between coworkers if the employer knew about the harassing conduct and failed to take immediate action to correct the problem.

• Harassment by NonEmployees

An employer may be liable for sexual harassment committed by nonemployees in the workplace if the employer (or the employer’s agents) knew or should have know of the harassing conduct and failed to take action to correct the problem (Gov. Code 12940 (j)(1)).

Supervisor Liability and Employee Liability

The FEHA provides that supervisors may be personally liable for sexually harassing an employee; under these circumstances, the supervisor’s personal assets may be at risk. Further, the employer does not have to reimburse an employee who must pay out of pocket to resolove a sexual harassment claim (Farmers Ins. Group v. County of Santa Clara, 11 Cal. 4^th 992 (1995). Employees can also be personally liable for sexual harassment, and their assets are also at risk for such harassment should a lawsuit be filed.

An Employer’s Obligations

1. Take all reasonable steps to prevent discrimination and harassment in the workplace;
2. If harassment occurs, take immediate and effective steps to correct the problem; to the extent possible treat the matter confidentially (for example conduct interviews in a private area);
3. Develop and implement a detailed sexual harassment policy that includes a procedure for filing complaints of harassment;
4. Post the Department of Fair Employment and Housing (DFEH) employment poster in the workplace;
5. Distribute an information sheet on sexual harassment to all employees;
6. Employers who do business in California and employ 50 or more part-time or full-time employees must provide 2 hours of sexual harassment training every two years to all supervisors and to all new supervisors within 6 months of hire.

Filing a Complaint

An employee must file a complaint with the DFEH within one year of the alleged violation, or with the EEOC within 180 days, unless a charge is first filed with the DFEH, then within 300 days of the alleged violation or within 30 days of receipt of notice from the DFEH that their proceedings are terminated.

Conclusion

In their ongoing effort to prevent sexual harassment in the workplace, employers should therefore immediately and effectively address any complaint of harassment; develop a detailed sexual harassment policy; post and distribute any required information on sexual harassment in the workplace and, if applicable, train all supervisors within the required time frames.

BOBrien