Sexual Harassment Under the Fair Employment and Housing Act (FEHA)

1. Sexual HarassmentUnder the Fair Employment and Housing Act (FEHA) Presented by Phoebe P. Liu, Senior Staff Counsel Department of Fair Employment and Housing www.dfeh.ca.gov

2. Is sexual harassment still relevant as an issue? Total employment discrimination complaints filed with the DFEH for 2009: 17,680 complaints Total sexual harassment complaints filed for 2009: 3839 complaints

3. Sexual harassment claims totaled nearly 22% of all employment discrimination complaints filed in 2009 with the DFEH.

4. The right to work in an environment free from discrimination and/or harassment because of one’s sex or gender is a civilright in California.

5. Education Objectives: • Define sexual harassment under the FEHA. • Recognize sexual harassment. • Understand employer/employee rights and responsibilities. • Understand legal remedies.

6. What is Sexual Harassment? • Unwanted and unwelcome visual, verbal or physical conduct that is sex-based or of a sexual nature; • Requests for sexual favors; or • Offensive third party conduct to which the victim is subjected. (Cal. Code Regs., tit. 2, § 7287.6)

7. Who is protected? Generally, employees (excepting individuals employed by his/her parents, spouse, child or anyone employed under a special license in a nonprofit sheltered workshop or rehabilitation facility). (Gov. Code, § 12926, subd. (c).) Independent contractors (i.e. a person providing services pursuant to a contract). (Gov. Code, § 12940, subd. (j)(5).) Job applicants.

8. Who is liable? Generally, employers are liable (Gov. Code, § 12940, subd.(j)(4)(A)) Person acting as an agent of an employer, directly or indirectly, • Any person regularly employing one or more persons; or • Person regularly receiving services of one or more persons providing services pursuant to a contract; or • The state, or any political or civil subdivision of the state, and cities.

9. Who is liable? • Employers are strictly liable for damages an employee incurs as a result of a supervisor or agent’s sexual harassment. • An employer is liable for a non-supervisory employee’s harassment only if the employer knew or should have known of the harassing conduct and failed to take immediate and appropriate corrective action.

10. Who is liable? (cont.) • Personal liability will be imposed on any individual who harasses another person in the workplace so long as there is an employment relationship between the two persons. • Whether the harasser was employed in a supervisorial or managerial capacity to the victim is irrelevant for imposing personal liability on the harasser.

11. Types of Sexual Harassment Quid Pro Quo Harassment. Hostile Work Environment Harassment.

12. Elements of Hostile Work Environment Harassment 1. Respondent engaged in harassing conduct directed toward the complainant; or The complainant personally witnessed or perceived harassing conduct; and the harassing conduct took place in his/her immediate environment.

13. 3. The conduct was unwelcome and sufficiently severe or pervasive that it has the purpose or effect of altering the condition of the complainant’s work environment or prospective work environment; and Created an intimidating hostile, abusive or offensive work environment. 2. The harassing behavior was because of the complainant’s sex or gender. Hostile Work Environment Harassment (cont.)

14. Hostile Work Environment Harassment (cont.) Whether conduct is severe or pervasive is a fact-specific inquiry requiring review of the totality of the circumstances.

15. Hostile Work Environment Harassment (cont.) 4.The harasser was a manager, supervisor, or agent of his/her employer; or for non-supervisory harassers, the employer or the employer’s agent or supervisors knew or should have know of the harassing conduct and failed to take immediate and appropriate corrective action.

16. Hostile Work Environment Harassment (cont.) 5. A reasonable person in the same circumstances as the complainant would have perceived the environment created by the conduct as intimidating, hostile, abusive or offensive.

17. Hostile Work Environment Harassment (cont.) The perspective of a reasonable person is the victim’s position requires consideration of all surrounding circumstances and factors such as, age, gender, work experience, education and life experiences.

18. Examples of Behavior Found To Be Sexual Harassment: • Visual Conduct • Leering. • Staring. • Making sexual gestures. • Displaying sexually suggestive or explicit objects, pictures, cartoons, graffiti, posters, emails, text messages.

19. Examples of Behavior Found To Be Sexual Harassment (cont.): • Verbal Conduct • Foul or obscene language. • Derogatory comments • Gender specific slurs. • Explicit discussions about sexual activities/behaviors. • Comments about other people’s attributes.

20. Examples of Behavior Found To Be Sexual Harassment (cont.): • Verbal Conduct (cont.) • Sexual advances. • Sexual propositions. • Sexual innuendos. • Spreading rumors about another person’s sexual activities/conduct and/or partners. • Jokes.

21. Examples of Behavior Found To Be Sexual Harassment (cont.): • Written Conduct • Suggestive, obscene or propositioning letters, notes, invitations, emails. • Displaying pictures in writing.

22. Examples of Behavior Found To Be Sexual Harassment (cont.): • Physical Conduct • Unwelcome touching. • Kissing. • Hugging. • Grabbing. • Impeding or blocking movement. • Any physical interference with normal work or movement. • Sexual gestures. • Assault.

23. Examples of Behavior Found To Be Sexual Harassment (cont.): • Other conduct: • Whistling or cat calls. • Sex-tinged or gender specific pranks and practical jokes. • Holding company functions in an inappropriate environment such as a strip club. • Inviting inappropriate guests to employer-sponsored functions, such as, strippers and exotic dancers. • Sexual favoritism.

24. Location of Harassment The employer is liable if the activity is connected to the employer’s business. • Employer sponsored activity (party). • Business travel.

25. Hostile Work Environment The victim need not have been the target but must have perceived the harassment.

26. Quid Pro Quo (Conditional) Sexual Harassment Receipt or denial of an employment benefit is dependent on the victim submitting or succumbing to the harasser’s advances, offers or demands which are often sexual in nature.

27. Elements of a Quid Pro Quo Harassment Claim: 1. Respondent subjected the complainant to unwelcome sexual advance(s), request(s) for sexual favor(s) or other verbal, visual or physical conduct of a sexual nature when: a. Submission to the conduct was made either explicitly or implicitly a term or condition of the complainant’s employment or provision of services.

28. Elements of a Quid Pro Quo Harassment Claim (cont.): b. Submission to or rejection of the conduct by the complainant was used as the basis for employment decisions affecting the complainant.

29. Elements of a Quid Pro Quo Harassment Claim (cont.): 2. The harasser was a manager, supervisor or agent of his/her employer; OR The employer or employer’s agents or supervisors knew or should have known of the harassing conduct and failed to take immediate and appropriate corrective action.

30. Examples of Quid Pro Quo Sexual Harassment: • An offer of employment benefit(s) in exchange for sexual favor(s); or • Actual or threatened reprisal after a negative response to sexual advances.

31. Preventative Measures Employers are required to take all reasonable steps to prevent harassment from occurring, such as having a harassment policy, and training employees on sexual harassment. (Gov. Code, § 12940, subd. (k).)

32. Defenses to Harassment under the FEHA?NONE! There is no viable affirmative defense applicable to sexual harassment cases since there is no legal justification for acts of workplace harassment.

33. Remedies • “Make whole” relief: back pay, front pay, reinstatement, transfer, purge personnel file, etc. • Compensatory damages for emotional and physical distress (unlimited in state civil court/capped at $150K before FEHC). • Punitive damages (unlimited in state civil court). • Administrative fine (FEHC only).

34. Remedies (cont.) • Affirmative relief (FEHC): employer is ordered to implement workplace policies, conduct training, provide counseling. • Injunctive relief (state civil court). • Attorneys fees and costs (only in state civil court).

35. The FEHA offers broader protection than Title VII (federal) Differences between FEHA and Title VII: • The FEHA expressly prohibits “harassment” as well as "discrimination.” • The FEH extends protection to independent contractors (persons providing services pursuant to a contract) as well as employees and job applicants. (Gov. Code, § 12940, subd. (j)(1).)

36. FEHA offers broader protection than Title VII (cont.) • Under the FEHA, an employer is strictly liable for the harassment of an employee by an agent or supervisor whether or not the employer knew about the harassing conduct and whether or not the employer took immediate and corrective action. • Under Title VII, an employer has an affirmative defense to a charge of sexual harassment if the employer can show that: (1) it exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and (2) the employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer to avoid harm.

37. FEHA offers broader protection than Title VII (cont.) • The FEHA ban on harassment extends to all employers (unlike Title VII, which applies only to employers of 15+ employees, or the FEHA's general ban on discrimination, which applies only to employers of 5+ employees). (Gov. Code, § 12940, subd. (j)(4)(A).)

38. Dealing with Sexual Harassment For Employees: Verbally tell the harasser that the conduct is unwelcome, offensive and must stop immediately and not be repeated.

39. Dealing with Sexual Harassment (cont.) For Employees: Nonverbally demonstrate that his/her conduct is unwelcome by walking away, avoiding interaction and using facial expression and body language.

40. Dealing with Sexual Harassment (cont.) For Employees: Report behavior to immediate supervisor, human resources officer, or appropriate member of management.

41. Dealing with Sexual Harassment for Employers Have an effective workplace anti-discrimination and anti-harassment policy that includes an effective complaint procedure. Keep employees fully informed of their rights.

42. Dealing with Sexual Harassment for Employers (cont.) When receiving complaint of harassment, listen actively and allow complainant to tell her/her story. Never force a confrontation between complaining employee and alleged harasser.

43. Dealing with Sexual Harassment for Employers (cont.) Communicate to the complainant that: The employer will conduct an immediate inquiry into the complaint. He/she has the right to and is encouraged to file a written complaint. He/she has the right to be free from retaliation.

44. Dealing with Sexual Harassment for Employers (cont.) INVESTIGATION Immediately follow employer’s guidelines on harassment procedures. Engage a qualified neutral, impartial investigator, Remain objective. Commence investigation. Obtain details about the conduct complained about (i.e., frequency, duration, nature of incidents) and get evidence from complaining employee. Explore relationship/history of parties. Explore emotional impact on complaining employee.

45. Dealing with Sexual Harassment for Employers (cont.) Interview possible witnesses. Admonish all involved not to interfere with investigation or attempt to sway witnesses. Make credibility determinations based on facts and documents gathered, witness demeanor and motivations.

46. Dealing with Sexual Harassment for Employers (cont.) Protect the complaining employee from retaliation.

47. Dealing with Sexual Harassment for Employers (cont.) Draw a conclusion after the investigation as to whether or not the complaint was meritorious. Take appropriate corrective action. Provide remedy to complaining employee.

48. Dealing with Sexual Harassment for Employers (cont.) Continue monitoring the workplace for compliance with policy.

49. What if I still have questions?Contact the DFEH! www.dfeh.ca.gov 1-800-884-1684

50. Hypothetical #1 Male police officers were unhappy that a female officer started working with them. They spread untrue rumors about her abilities, single her out for unfavorable assignments and double shifts, filed unsubstantiated complaints about her work performance, spread rumors that she had slept with her superiors to receive desirable work assignments. The double standard for male and female officers was acknowledged by her supervisors but she was told to live with it. • Did any sexual harassment occur in this case? • Why or why not? • If yes, who is liable in this case?