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AB 1825 Training S exual Harassment What it is. How to prevent it. Presented . Don Phin, Esq. California attorney since 1983 specializing in employment practices litigation and prevention. Developer of the HR That Works program, acquired by THinkHR . Author of seven books.
Yanowitz v. L’Oreal (CA Supreme Ct 2005) discusses new guidelines around retaliation. Employers have to guard against retaliation- even for marginal complaints.
“We conclude that an employee's refusal to follow a supervisor's order that she reasonably believes to be discriminatory constitutes protected activity under the FEHA and that an employer may not retaliate against an employee on the basis of such conduct when the employer, in light of all the circumstances, knows that the employee believes the order to be discriminatory, even when the employee does not explicitly state to her supervisor or employer that she believes the order to be discriminatory.”
Miller v. Dept. of Corrections (CA Supreme Ct 2005) ruling that an employer can be sued for sexual harassment for conveying a message that the way to get ahead at work is to sleep with the boss. For the EEOC's position on this subject see http://www.eeoc.gov/policy/docs/sexualfavor.html.
1. An employee may establish an actionable claim of sexual harassment under the FEHA by demonstrating widespread sexual favoritism that was severe or pervasive enough to alter his or her working conditions and create a hostile work environment. 2. Even though an employee’s complaint to management does not specifically include the words “sexual harassment” or “sexual discrimination,” if the nature of the complaint is such that management could reasonably believe the employee was making a claim of sexual harassment in violation of the FEHA, such a complaint constitutes a “protected activity” under the FEHA.
Sallie Mae Bradley v. California Department of Corrections and Rehabilitation(California Fifth Appellate District)
“CDC had duty to act immediately to stop the sexual harassment …and to ensure that no harassment had occurred. Referring the matter to a lengthy and complicated investigative process alone is insufficient to comply with the protections mandated by the FEHA when continued contact with the harasserleads to further harassment.”
Failing to stop the harassment resulted in a verdict of $437,000 and attorney fees of $305,000.
The Fair Employment and Housing Commission regulations define sexual harassment as unwanted sexual advances, or visual, verbal or physical conduct of a sexual nature. This definition includes many forms of offensive behavior and includes gender-based harassment of a person of the same sex as the harasser.
An employee is fired or denied a job or an employment benefit because he/she refused to grant sexual favors or because he/she complained about harassment. Retaliationfor complaining about harassment is illegal, even if it cannot be demonstrated that the harassment actually occurred.
An employee is exposed to an offensive work environment. Exposure to various kinds of behavior or to unwanted sexual advances alone may constitute harassment.
An employee quits because he/she can no longer tolerate an offensive work environment, referred to as a"constructive discharge" harassment case. If it is proven that a reasonable person, under like conditions, would resign to escape the harassment, the employer may be held responsible for the resignation as if the employee had been discharged.
Some people just “don’t get it” or don’t want to get it!
An employer might avoid liability if the harasser is a non-management employee, the employer had no knowledge of the harassment, and there was a program to prevent harassment. If the harasser is a non-management employee, the employer may avoid liability if the employer takes immediate and appropriate corrective action to stop the harassment once the employer learns about it. Employers are strictly liable for harassment by their supervisors or agents.
Government Code section 12940, subdivision (k), requires an entity to take "all reasonable steps to prevent harassment from occurring." If an employer has failed to take such preventative measures, that employer can be held liable for the harassment. A victim may be entitled to monetary damages even though no employment opportunity has been denied and there is no actual loss of pay or benefits.
Fully and effectively investigate. The investigation must be immediate, thorough, objective and complete. Anyone with information on the matter should be interviewed. A determination must be made and the results communicated to the complainant, to the alleged harasser, and, as appropriate, to all others directly concerned.
If harassment is proven, there must be prompt and effective remedial action. First, appropriate action must be taken against the harasser and communicated to the complainant. Second, steps must be taken to prevent further harassment. Third, appropriate action must be taken to remedy the complainant's loss, if any.