Hold Harassers Liable Too

Should individuals who sexually harass their co-workers be able to escape the legal and economic consequences of their wrongful acts? Many victims of sexual harassment are shocked to learn that as a result of the California Supreme Court’s decision on Dec. 9 in the case of Carrisales vs. Department of Corrections that the “bad guys” (co-workers who sexually harass) may get off scot-free, while victims may be left with no legal remedy for the harassment that they have suffered.

How could this have happened in our legal system, which generally emphasizes personal responsibility and legal consequences for one’s own behavior?

The reasoning behind the high court’s ruling is that, while California’s Fair Employment and Housing Act imposes liability on “an employer . . . or any other person” who sexually harasses another in the workplace, the statute as a whole, in the opinion of the court, appears to limit liability to supervisors and employers only. We disagree with the court’s interpretation and believe that “any person” means any person.

In the one ray of light in this ruling, the court emphasized that it was not deciding as a matter of policy whether it is a good or bad idea to hold co-workers liable for sexual harassment. It was simply trying to interpret the statute as written by the California Legislature, as courts are supposed to do. The court invited the Legislature to amend the law if it is unhappy with the court’s ruling.

It is now urgent that the Legislature act immediately to do just that. As the court observed: “Prevention of sexual harassment in the workplace is of utmost importance.” Sexual harassment can end a career, ruin a family beyond repair and force victims into extensive psychotherapy and medication. It is entirely unacceptable in a nation whose public policy emphasizes equal employment opportunities for women and men.

A great deal of harassment occurs between co-workers working closely together when the boss may not be looking. The best way to eliminate or reduce harassment in the workplace is to deter would-be harassers with individual liability for their actions.

It makes no sense that only supervisors and employers should be required to pay a victim’s damages as a result of the co-worker’s improper behavior, while the co-worker may walk away without penalty. Everyone in the chain of command, from the owner who fails to prevent sexual harassment in the workplace, to the manager who fails to take immediate action upon notification of the harassment, to the perpetrator who sexually harasses a co-worker, should face legal and economic consequences in order to deter further abuses and fully protect victims.

Even after this recent ruling, co-workers who harass can still be sued in certain circumstances under other legal theories--such as assault or battery (in the case of unwelcome groping or touching), defamation, intentional infliction of emotional distress (in the case of inappropriate sexual remarks) or invasion of privacy--but the Supreme Court also recognizes that its decision may allow many co-workers who sexually harass to completely escape liability. An employee who has been sexually harassed at work should not have to cobble together other legal theories in order to seek redress against the very individual who committed the wrong.

The Legislature must state loudly and clearly what we believe it intended all along: All persons in California can be held legally responsible for acts of sexual harassment in the workplace.