A Los Angeles Employer's Guide to Sexual Harassment Issues in the Workplace.
This post will discuss sexual harassment, how it is defined, employer responsibilities to address and prevent it and how an employer can properly investigate employee complaints.
Senate Bill 1343- Mandatory Sexual Harassment Training Deadline January 1, 2021.
California’s deadline to comply with Senate Bill 1343 is fast approaching. All employers in California with five or more employees are required to have their employees, non-supervisory and supervisory, attended sexual harassment prevention training before January 1, 2021.
Supervisors are required to attend a 2-hour training.
Non-supervisory employees are required to attend a 1-hour training.
Training must be done within 6 months of becoming supervisor or being hired.
Temporary or seasonal employees must receive the training within the first 30 days of being hired.
The employee must be paid for the time spent taking the training.
Employers need to keep a record of employees completed trainings.
Lucky for employers, the Department of Fair Employment and Housing (the “DFEH”) created FREE trainings to satisfy the requirements. The DFEH Sexual Harassment Prevention Trainings are for non-supervisory and supervisory employees. They are available in six languages- English, Spanish, Chinese, Korean, Vietnamese and Tagalog.
What policies are employers required to have?
California law requires employers to have the following documentation (free resources linked):
Paid anti-sexual harassment training every two years (employers with five or more employees)
How is “Sexual Harassment” defined in California?
Sexual harassment is defined by federal law and state law. California’s definition of sexual harassment is broader and more inclusive than the federal definition. Employers are subject to both state and federal law.
Federal Law- Title VII of the Civil Rights Act of 1964
Title VII of the Civil Rights Act of 1964 (“Title VII”) became law in 1964 and has since been amended. Title VII prohibits employment discrimination based on race, color, religion, sex and national origin. The federal government created the Equal Employment Opportunity Commission (“EEOC”) to enforce Title VII.
Under the federal law only employers with 15 or more employees are subject to Title VII.
Federal law only protects employees.
Basis of Sex
The federal law also finds the basis of sex to include pregnancy, childbirth or related medical conditions.
California Law- Fair Employment and Housing Act
California created the Fair Employment and Housing Act (“FEHA”) in 1980. Since then it has been amended several times to be more inclusive. The DFEH enforces the FEHA Law.
Under FEHA, it is unlawful for an employee to be subject to sexual harassment in the workplace.
Employers with one or more employees are subject to FEHA as it pertains to sexual harassment. Employers with five or more employees are subject to FEHA as it pertains to harassment, discrimination and retaliation.
FEHA protects employees, applicants for employment, independent contractors, vendors, volunteers, paid and unpaid interns.
Basis of Sex
Under FEHA the basis of sex is broader than the federal definition. California’s law protects employees from sexual harassment based on sex, gender, including pregnancy, childbirth, or related medical conditions, gender identity, gender expression, or sexual orientation.
“ ‘Sex’ includes, but is not limited to, the following:
(A) pregnancy or medical conditions related to pregnancy.
(B) Childbirth or medical conditions related to childbirth.
(C) Breastfeeding or medical conditions related to breastfeeding.”
“ ‘Sex’ also includes, but is not limited to, a person’s gender. “Gender’ means sex, and includes a person’s gender identity and gender expression.” Gov’t Code §12926, et seq.
“ ‘Gender Identity’ means each person’s internal understanding of their gender, which may include male, female, a combination of male and female, neither male nor female, a gender different from the person’s sex assigned at birth, or transgender.” 2 CCR § 11030.
“ ‘Gender expression’ means a person's gender-related appearance or behavior, or the perception of such appearance or behavior, whether or not stereotypically associated with the person's sex assigned at birth.” Id.
“ ‘Transgender’ is a general term that refers to a person whose gender identity differs from the person's sex assigned at birth. A transgender person may or may not have a gender expression that is different from the social expectations of the sex assigned at birth. A transgender person may or may not identify as ‘transsexual’. ” Id.
Sexual Orientation is a person’s emotional, romantic or sexual attraction to another person. Type of sexual orientation include, but are not limited to, heterosexuality, homosexuality, bisexuality, pansexuality and asexuality.
Sexual harassment can occur when the employees are the same sex, gender, sexual orientation, gender identity, or gender expression.
What are the types of “Sexual Harassment” in California?
California acknowledges two types of sexual harassment, “quid pro quo” and “hostile work environment.”
Quid Pro Quo
Quid Pro Quo is Latin for “this for that.” This harassment occurs when an employee’s job, promotion, benefits or work environment becomes conditioned on the employee’s submission to sexual advances or other conduct based on sex. This kind of sexual harassment is almost exclusively driven by a sexual desire.
Hostile Work Environment
This harassment occurs when unwelcome comments or conduct are set out in the workplace based on sex and these comments or conduct unreasonably interfere with an employee’s work or performance and starts to create an intimidating, hostile or offensive work environment. The harassment must be severe or pervasive to be unlawful. One single act of harassment may be severe enough to be deemed unlawful.
Hostile work environment is the most common type of sexual harassment because it does not need to be based on sexual desire and does not need to be directed at the employee who feels harassed.
What conduct or behavior may be considered sexual harassment?
Sexual harassment comes in many forms. As discussed above the conduct does not need to be based on a sexual desire. Here are some clear offensive behaviors that are considered sexual harassment according to the DFEH:
Unwanted sexual advances or physical touching.
Offering employment benefits in exchange for sexual favors.
Threatening to take away employment benefits if sexual favors are not returned.
Leering, gestures, or displaying sexually suggestive objects, pictures, cartoons or posters.
Derogatory comments, epithets, slurs or jokes about one of the protected groups discussed above.
Graphic comments, sexually degrading words or suggestive or obscene messages or invitations.
Physical touching or assault, as well as impeding or blocking movements.
I have dealt with many clients who were not even aware employees were doing any of the offensive conduct above but got sued because of it. Work environments most susceptible to the above behavior are those with few employees and little supervision. Warehouses, auto body shops, janitorial companies, restaurants, bars and small offices, just to name a few.
Los Angeles small businesses usually have a key employee with more power than the subordinates. This allows the key employee to leverage their status against other employees and intimidate them into not reporting sexual harassment.
Employees are not required by law to report sexual harassment to their employer before filing a complaint or lawsuit. However, an employer should create a work environment that encourages employees to speak up. It is preferable for an employee to tell you they are being harassed than to find out after a lawsuit is filed.
How does an employer prevent sexual harassment?
Recommendation 1- Educate
It is required by law for employers to eliminate sexual harassment in the workplace. An employer needs to educate employees on anti-harassment policies. Creating and implementing the required written policies discussed above will highlight to employees that sexual harassment is prohibited.
Recommendation 2- Listen
Create a system for employees to report workplace grievances confidentially. I created free fillable PDF forms employers can use, found here. One such form is an Employee Grievance Form. One approach to creating this system is to email this form to all employees advising they may fill it out and email it back whenever they have a workplace issue. Having the harassed employee document their experiences helps the employer better investigate claims early on.
Recommendation 3- Enforce
Enforce a zero-tolerance policy. If you see something, say something. This may come off as a surprise, but employees can be replaced. If an employee is harassing other people but is otherwise good at their job, if they do not correct their actions they need to be terminated.
My clients always tell me they are afraid of their own employees, either because they don’t want to get sued by the harasser or they don’t want a loss in productivity. However, keeping an employee who routinely harasses other staff, especially if the employee is in a supervisory position, is a much larger liability. Before terminating any employee, you should consult with an employment attorney, like myself.
You would be surprised how much more productive an entire workforce can be if they feel comfortable at work. Good employee morale is itself an intangible asset that drives many businesses to success.
How does an employer investigate sexual harassment?
As previously mentioned, an employer needs to establish a complaint process that allows for confidentiality. If the employee is being harassed by a supervisor then the employee can complain to another person in the company, a hotline, the DFEH or the EEOC. Ideally, you want the employee to report within the company if possible.
Receiving the Complaint
Once a complaint is received the employer must review the allegations. Note any witnesses that are mentioned. Witnesses could be other employees, vendors or independent contractors. Review any documents that are provided to you in support of the complaint, such as texts, emails, photos or videos.
Confirm Receipt of Complaint
Once a complaint is received tell the aggrieved employee it has been received and that you will open an investigation. Not always can confidentiality be maintained to the fullest extent. The investigation will require that other employees or third parties be interviewed as part of the process. Information should be shared on a “need to know” basis and be limited to those individuals involved and relevant witnesses.
Implement Immediate Protections
Separating the employees involved in the complaint from each other is often necessary to prevent further harassment or potential retaliation by the harasser. Some options would be changing schedules, moving workstations, or giving a leave of absence. The goal is to not make the aggrieved employee feel they are being burdened or retaliated against for their complaint.
Choose the Investigator
Smaller business usually have ownership or a few supervisors to choose from for an internal investigation. If the supervisor is the alleged harasser then another supervisor, owner or third party can be hired. Outside counsel can be called in to investigate. It must be made very clear the attorney represents the employer not the employees. Hiring an attorney to conduct the investigations is not always appropriate and may intimidate the employees. However, hiring an attorney to advise you on the investigation is highly recommended and can help avoid mistakes in the process.
The investigation itself comes in a few parts.
1. Review and understand the allegations.
2. Create a witness list.
3. Gather any evidence- photos, videos, emails, texts, schedules.
4. Draft a set of interview questions for aggrieved employee, accused employee and witnesses.
5. Take note of what the witnesses say.
Interviews are then scheduled. There may be follow up interviews with witnesses based on interviews that already occurred.
Review of Evidence
An employer will need to review all documents and interview notes. Careful consideration to credibility of witnesses and the amount of evidence.
After reviewing all evidence the employer will make a decision. The decision can be a form of discipline or even termination, depending on the severity and the results of the investigation. An employer must be very careful in making a decision that will not create any more liability for the employer. Consulting an attorney prior to making a final decision is a good call.
Close the Investigation
An employer should communicate the decision to the aggrieved employee and accused employee separately. The employer needs to make the aggrieved employee feel they were understood, and steps were taken to address the complaint. The aggrieved employee may not always agree with the decision made but the employer should encourage the employee to follow up if the inappropriate conduct continues to occur.
All steps taken to investigate a complaint need to be documented in the event an employee later files lawsuit about the complaint. An employer should make a final written report to document the entire process to show the complaint was taken seriously and addressed appropriately. The final report should include the following details of the investigation:
Summary- allegation, people involved, dates and times.
Names- aggrieved employee, accused employee and witnesses.
Facts- who, what, where, when, why, and how.
Credibility of witnesses and evidence.
Employment policies affected.
Decision- action taken, reason and person who made the decision.
Remaining Issues- issues and the reasons they are not resolved.
Dates the investigation started and closed.
Follow Up with Aggrieved Employee
An employer should follow up with the aggrieved employee and ask if there has been a change in the workplace, if the employee feels comfortable and if the conduct complained about has stopped. Be prepared to re-open an investigation if the harassing conduct is ongoing.
How does an employer discipline an employee who is sexually harassing others?
There is no clear rule for how an employer should discipline an alleged harasser. It is a case by case decision and weighs heavily on the evidence presented during an investigation. Discipline can take many forms, some examples are suspension, one strike on their record, reassignment or modification of work, required sexual harassment training, demotion or termination.
An employer should consult with an attorney before making a final decision to determine if the discipline is sufficient and appropriate.
Is an employer liable for an employee who sexually harasses others?
An employer is liable for the actions of its employees. An employer can also be liable for the actions of non-employees if the employer knew or should have known of the harassment and failed to take immediate and appropriate corrective action.
Employers are liable for the conduct of their employees, including supervisor. However, harassers themselves can be personally liable. An employer can take action against the harasser for violating workplace policies and the law.
Employees who file a complaint for sexual harassment may be awarded their attorney’s fees and costs, job reinstatement, back pay, promotion, money damages for emotional distress and workplace policy changes.
What to do if an employee is suing you for sexual harassment?
If you are a Los Angeles employer or small business dealing with a sexual harassment complaint, being sued by an employee for sexual harassment or just want to prevent sexual harassment issues you should immediately call me at (818) 306-0686 or email me at email@example.com to set up a consultation. We can discuss the facts, defense strategies and appropriate remedial actions to reduce liability.
Sexual harassment lawsuits do take time but usually settle at the end. You will want to discuss with me the specific situation so we can come up with a practical approach to resolution and future prevention. Many of my clients have had weak defenses because they did not understand the requirements and did not ask an attorney for help early on. Seeking legal advice is an investment in your business and peace of mind.
The information in this post is for general information purposes only. Nothing on this post should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.