Sexual Harassment Overview for Employers
By: Stacy L. Henderson
The key to avoiding liability for sexual harassment is taking a proactive approach. Most employers are aware that harassment of employees in the workplace is prohibited and that employers are strictly liable for harassment by supervisory or management employees. Did you also know that in some cases employers can also be liable for harassment by non-management employees and even non-employees such as clients or customers? As an employer, you should be knowledgeable about your obligations when it comes to preventing, investigating and remedying sexual harassment in your workplace.
California law places an affirmative obligation on all employers to take all reasonable steps to prevent harassment from occurring. To that end, employers are required to have a sexual harassment prevention policy, to provide all employees with basic information about sexual harassment, and to display a Department of Fair Employment and Housing (“DFEH”) poster regarding harassment and discrimination at the workplace.
Most employers comply with these requirements by handing new employees a piece of paper that describes the company’s policy against harassment and hanging the required poster in the break room. Sometimes employers simply provide the employment handbook to new employees and expect them to read it on their own time to learn about the company’s policies. Because of the exposure to monetary damages for sexual harassment claims, and the litigious nature of today’s employees, complying with the law’s minimum requirements is not enough in most cases. Not only must employers have a program in place to prevent harassment, but they must take affirmative steps to ensure that the program is followed by all employees.
California law requires employers to provide training for supervisory or management employees every two years as follows:
- The State, cities and counties, and their political or civil subdivisons, must provide training regardless of the number of employees.
- Private employers must provide training when the employer has 50 or more full-time, part-time or temporary employees, or regularly receive services of 50 or more persons pursuant to a contract or acting as an agent of an employer, directly or indirectly. Employers are considered to have 50 or more employees if they are employing or engaging 50 or more employees or contractors for each working day in 20 consecutive weeks in the current or preceding calendar year. Employees do not all have to work at the same location or all reside in California to count.
In addition to handing out the required paperwork and providing the required training, employers must take action if the employer learns that harassment has, or may have occurred, regardless of whether an official complaint has been made. Thus, if an employer learns of harassment, it must conduct a meaningful investigation, and take immediate and appropriate corrective action to stop the harassment, ensure it will not continue, and remedy the complainant’s damages, if any. While employers cannot guarantee that they will never be sued for sexual harassment, providing appropriate training and properly handling complaints is the best way to both limit instances of harassment and provide the best odds of prevailing if an employer is sued.
Since we are continuing to see sexual harassment claims made by employees, employers need to be proactive in their efforts to discourage and prevent sexual harassment. To limit, or avoid exposure all together, employers are encouraged to regularly train all employees about sexual harassment in the workplace. To learn more, and ensure you are complying with the law, you should work with your legal counsel or human resources coordinator.
