Employers, Supervisors Facing Stricter Harassment, Bias Laws
Sexual harassment and discrimination cases represent one-third of all cases in the federal court system. Ever since Anita Hill’s allegations against Clarence Thomas in his 1991 Supreme Court confirmation hearings, the issue of sexual harassment has exploded.
California case law since has become increasingly strict regarding laws that protect employees. But now, lawmakers have made an unprecedented move in an effort to stop harassment and discrimination in the workplace. Although California employers always have been liable to one degree or another for their victimized employees, new case law states that individual supervisors can be held liable personally for sexually harassing employees.
The issue of a supervisor’s personal liability was first allowed in a 1995 California appellate court case (Page vs. Superior Court) when the court expanded the definition of an employer to include “anyone acting as an agent of the employer.” As a result, supervisors charged with either “quid pro quo” sexual harassment (promising benefits to an employee in exchange for sexual favors), or “hostile environment sexual harassment” (subjecting employees to unwelcome sexual advances or conduct) might be required to pay compensatory damages to the victim and possibly even punitive damages.
Since the Page decision, several cases have helped further define when a supervisor can be found liable. In another 1995 California appellate case (Matthews vs. Superior Court), the court found that under the Fair Employment and Housing Act (FEHA), supervisors also can be found liable for aiding and abetting sexual harassment if they in any way assisted or encouraged behavior that would be considered sexual harassment. In this case, the plaintiff filed suit against her employer as well as her immediate supervisors who were aware of and participated in the sexual harassment. It’s important to note that employers, although not always supervisors, can be found liable whether or not they were aware of any instances of sexual harassment.
Robert Bekken, a partner with the law firm Fisher & Phillips, says, “In order for a plaintiff to prevail on the theory or claim that he/she was subjected to sexual harassment, the plaintiff must provide the court with three elements of proof: (1) a preponderance of evidence that sexual harassment in the workplace was so severe or pervasive that it altered the conditions of his/her employment, (2) proof of an abusive working environment and (3) that he/she was subjectively offended by the harassing conduct.”
If the plaintiff is successful in providing the above stated proof, the employer will be asked to provide the court with evidence that demonstrates what it has done to train employees and managers on sexual harassment and protect employees from such behavior.
To help employers reduce their liability, California law requires that employers educate employees by providing them with explicit information to help protect themselves. Employers must provide the following: (1) explanation of the law, (2) examples of sexual harassment, (3) a clear outline of the company’s complaint process available to employees, (4) direction on how to contact the Department of Fair Employment and Housing (DFEH) and the Fair Employment and Housing Commission (FEHC), and (5) explanation of the legal remedies and complaint process available through the DFEH and the FEHC.
The state also requires that employers post a DFEH poster in the workplace, which outlines the illegality of sexual harassment.
In addition to abiding by the state’s regulations, California courts have found that employers should take additional steps to avoid liability. Although not required by law, employers can protect themselves further by providing training programs to raise employee awareness about laws prohibiting sexual harassment, and employers should give immediate attention to claims made by employees.
Bekken says, “In a 1984 federal circuit court case (Barett vs. Omaha National Bank), the court concluded that the employer must thoroughly investigate a complaint immediately. In determining liability, the courts closely examine how quickly and effectively the employer responded to a claim.”
He added, “The employer should also take necessary corrective action, including interviewing, counseling and possibly terminating the accused harasser. However, employers can be caught in the proverbial Catch-22 because of liability for terminating the accused harasser. This is why employers need to receive proper legal counsel before taking action against the harasser.”
As demonstrated in the recent sexual harassment case developments, the state is placing added pressure on both employers and supervisors to thwart sexual harassment. Personal liability is an important issue to all supervisors and especially human resource professionals who are likely to be responsible for handling claims against other employees. For more information, contact Professionals in Human Resources Assn., PIHRA, at (213) 622-7472.
