Proactive Prevention: Sexual Harassment Mitigation for Employers

R. Todd Frahm, Partner | Dericci Keller, Paralegal

November 29, 2023

The Reality of Sexual Harassment in Business: Prevention Is Key

Sexual harassment is real and affects businesses of all sizes.  It is one of the biggest issues facing employers these days, and if you don’t have strong policies that are clearly communicated to your employees, you may be exposed to employer liability.

The #MeToo movement has recently shed light on the disturbingly common occurrences of sexual harassment in the workplace.  Issues related to sexual harassment have dominated discussions across all industries and sectors of business.  Not only does sexual harassment harm the victim, it also presents a threat to the employer.  Legal fees for the defense of a sexual harassment lawsuit, regardless of the verdict, can easily exceed $100,000.  How can an employer protect its business from this legal risk?  The best policy is to ensure that everyone in your workplace understands what constitutes harassment, and also understands the benefits of a diverse and safe workplace.

Sexual harassment is a form of discrimination and does not have to be motivated by sexual desire.  It may involve harassment of a person of the same gender as the harasser, regardless of either person’s sexual orientation or gender identity.

Types of Sexual Harassment: Recognizing the Signs

There are two types of sexual harassment:

1. “Quid pro quo” (Latin for “this for that”) sexual harassment is when someone conditions a job, promotion, or other work benefit on the employee’s submission to sexual advances or other conduct based on sex.

2. “Hostile work environment” sexual harassment occurs when unwelcome comments or conduct based on sex unreasonably interferes with the employee’s work performance or creates an intimidating, hostile, or offensive work environment even if the offensive conduct was not aimed directly at the employee.

Sexual harassment includes many forms of offensive behaviors including:

1. Unwanted sexual advances

2. Offering employment benefits in exchange for sexual favors

3. Leering, gestures, or displaying sexually suggestive objects, pictures, cartoons or posters

4. Derogatory comments, epithets, slurs, or jokes

5. Graphic comments, sexually degrading words, or suggestive or obscene messages or invitations

6. Physical touching or assault, as well as impeding or blocking movement

Actual or threatened retaliation for rejecting advances or complaining about harassment is also unlawful.

Employer Liability: What You Need to Know

All employers, regardless of the number of employees, are covered by the harassment provisions of California law.  Employers are liable for harassment by their supervisors or agents that culminated in a tangible employment action. If the harassment did not lead to a tangible employment action, the employer is liable unless it proves that: 1) it exercised reasonable care to prevent and promptly correct any harassment; and 2) the employee unreasonably failed to complain to management or to avoid harm otherwise.  All harassers, including both supervisory and non-supervisory personnel, may be held personally liable for harassment or for aiding and abetting harassment.  The law requires employers to take reasonable steps to prevent harassment.  If an employer fails to take such steps, the employer can be held liable for the harassment.  In addition, an employer may be liable for the harassment by a non-employee (for example, a client or customer) of an employee, applicant, or person providing services for the employer.  An employer will only be liable for this form of harassment if it knew or should have known of the harassment, and failed to take immediate and appropriate corrective action.

Employers have an affirmative duty to take reasonable steps to prevent and promptly correct discriminatory and harassing conduct, and to create a workplace free of harassment.  A program to eliminate sexual harassment from the workplace is not only required by law, but it is the most practical way for an employer to avoid or limit liability if harassment occurs.

Implementing Effective Harassment Prevention Policies

All employers must take the following actions to prevent harassment and correct it when it occurs:

1. Distribute copies of an information sheet on sexual harassment that complies with Government Code 12950;

2. Post a copy of the employment post entitled “California Law Prohibits Workplace Discrimination and Harassment;

3. Develop a harassment, discrimination, and retaliation prevention policy that meets the requirement of California law;

4. Distribute the employer’s harassment, discrimination, and retaliation prevention policy to all employee with an acknowledgment form for each employee to sign and return; and

5. Employers who do business in California and employ 5 or more part-time or full-time employees must provide at least one hour of training regarding the prevention of sexual harassment to each non-supervisory employee; and two hours of such training to each supervisory employee.  Training must be provided within six months of assumption of employment.  Employees must be trained every two years thereafter.

In order to limit your company’s liability for sexual harassment, it is recommended that you consult with an attorney to ensure that your company’s sexual harassment policy and formal training program abide by current laws.

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