The fall of many powerful men has brought into focus sexual harassment in the workplace. For businesses, sexual harassment lawsuits are costly. More importantly, sexual harassment must be eliminated. It creates a toxic and non-productive work environment and is inhumane. Below is a brief overview of an employer’s obligations under the law. Employers should be particularly aware of their obligations to prevent sexual harassment. The laws regarding sexual harassment are stringent and will likely become more so this year.
Current Law
We don’t have enough room in this article to discuss in detail the obligations of employers to prevent and deal with sexual harassment. The most important points to remember are that employers have clear and strict legal obligations. The most important can be summed up as follows:
- Duty to prevent harassment. The California Fair Employment and Housing Act requires that employers take reasonable steps to prevent harassment and discrimination.
- Duty to train supervisors. Managers and anyone in a supervisory role must receive sexual harassment training by employers who employ 50 or more workers.
- Duty to investigate. Employers must investigate complaints of harassment. Investigations must meet certain parameters to be considered adequate.
- Duty to have a written harassment policy. Employer must adopt a written anti-harassment, discrimination and retaliation policy. There are detailed requirements for these policies including complaint procedures. The policy must be distributed to employees – who shall acknowledge receipt of the policy.
- Duty to distribute information sheet. The California Department of Fair Employment and Housing publishes an information sheet regarding discrimination and harassment. Employers are required to distribute the information sheet to employees.
Always remember
A. Employers are strictly liable for harassment by managers and supervisors. Even if you didn’t know that one of your managers was sexually harassing an employee, your business will be held liable for that manager’s actions.
B. If an employer doesn’t take reasonable measures to prevent or stop harassment, the employer will be held liable for harassment by a worker against an employee. The worker might not be an employee but an independent contractor or consultant.
Possible changes
In the wake of recent scandals, several bills have been introduced in the California legislature regarding sexual harassment. Among these proposed changes to the law are:
1. Require all employers, regardless of the number of employees, to provide training for all employees (not just supervisors).
2. Create a presumption that any adverse job action (e.g. termination, demotion) that occurs within 90 days of a sexual harassment complaint is legally retaliation.
3. Extend the statute of limitations for filing sexual harassment claims.
4. Allow employees to sue for lack of sexual harassment policies, even if the employee has not suffered from harassment.
What to do
a. Take sexual harassment seriously. A sexual harassment lawsuit can cost a business tens, or hundreds, of thousands of dollars in attorneys fees and costs to defend. Settlement can run into same figures. Ensure that your business is complying with the law on harassment.
b. Hire a human resources professional. The laws and rules are complicated and changing and are too much to track for most business owners. If a business is too small to employ a HR professional, then it should hire a consultant.
c. Insurance. Consult with an insurance broker as to whether or not current policies cover sexual harassment lawsuits. Consider obtaining coverage.
d. Demonstrate an interest in preventing sexual harassment. Employers who show that they genuinely care about their employees and make clear that they will not tolerate sexual harassment will be not be bothered with sexual harassment claims.
This article is a brief overview of the subject of sexual harassment and an employer’s duties under the law. Business owners should consult with an human resources professional or labor attorney. Eric D. Morton is an attorney with Clear Sky Law Group. He can be reached at 760-722-6582, 510-556-0367, or emorton@clearskylaw.com.