Q: Do employers have a duty to prevent sexual harassment?
It has been clear under California law that employers are obligated to have appropriate sexual harassment training in their workplace, have appropriate policies and handbooks, and inform the workplace that sexual harassment is not tolerated.
Employers must also provide mechanisms for employees to report sexual harassment, such as requiring prompt, thorough investigation of harassment complaints.
The new law makes it clear that it’s not just limited to sexual harassment, but it now includes harassment based on any conduct including harassment based on age, race, sexual orientation, and disability.
Non-supervisor and third-party harassment
Q: What is the employer’s duty in the case of harassment of a person who is not in a supervisory position?
The liability for third-party harassment is structured the same as liability for a co-worker or supervisor. Liability for harassment committed by supervisors, and that term is broadly defined, is not necessarily someone limited to a manager or supervisor position, but someone who has actual authority in the workplace. Under California law, it’s clear that there’s strict liability, so if you can prove that a manager or supervisor harassed a subordinate, it doesn’t matter whether or not the employer had notice of the harassment, or whether the employee complained about it beforehand.
The mere fact that it was committed by someone with supervisory authority makes the employer strictly liable under co-worker harassment.
However, if there are two employees who are both at the same level of the company – co-workers where one does not have authority over the other, then the victim of sexual harassment has an additional burden of showing that the employer knew or should have known of the harassment that was occurring and failed to stop it. Those situations usually require a report to the employer either by the victim or someone else.
Where the harassment from someone who does not work for the company, the law imposes the same standard on employers as it does for third party vendor or customer harassment. In co-worker harassment, the employee has to show that the harassment was known either by a report or observation by a management level employee, and despite that knowledge, the employer failed to take steps to stop it.
The employer has a duty to stop the harassment. Obviously, it can be a delicate situation if it’s an important client, but the company has a duty to intervene, to stop the harassment, and put the victim in a position of not being further harassed.
What happens sometimes in that situation, frankly, is that the employer might reassign the victim of sexual harassment, but that doesn’t happen often, because it can then lead to a retaliation complaint. For example, if the position or change in employment is negative, such as a lower position, less prestige or fewer opportunities for advancement, then the employee is going to feel he or she was retaliated against for making a valid claim of sexual harassment.
The employer has to take steps to end the harassment in such a way that the employee who brought the complaint to its attention is not subject to illegal retaliation.