['Sexual Harassment']
['Sexual Harassment']
09/26/2024
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Summary of differences between federal and state regulations
Employer defined
Any employer regularly employing five or more persons is covered. Employers include the state, other government bodies, and private employers. Also subject are labor organizations, employment agencies, and apprenticeship programs.
An exception to the five-employee minimum occurs when harassment is at issue. Every employer employing one or more persons or receiving the services of one or more independent contractor(s) is covered by the prohibition of harassment. Additionally, an employee is personally liable for any unlawful employment harassment of another employee.
Religious associations or religious corporations not organized for private profit may be exempt under certain circumstances. Employees of the federal government are protected from discrimination under federal laws.
Unlawful employment practices
The Fair Employment and Housing Act defines harassment because of sex as including sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions. The state regulations define sexual harassment the same as the federal Guidelines on Discrimination Because of Sex, including:
- Unwanted sexual advances;
- Offering employment benefits in exchange for sexual favors;
- Making or threatening reprisals after a negative response to sexual advances;
- Visual conduct, e.g., leering, making sexual gestures, displaying of sexually suggestive objects or pictures, cartoons or posters;
- Verbal conduct, e.g., making or using derogatory comments, epithets, slurs and jokes;
- Verbal sexual advances or propositions;
- Verbal abuse of a sexual nature, graphic verbal commentaries about an individual’s body, sexually degrading words used to describe an individual, suggestive or obscene letters, notes or invitations;
- Physical conduct, e.g. touching, assault, impeding or blocking movements.
If a case is litigated before the Fair Employment and Housing Commission, employees may recover back pay, out-of-pocket losses, and up to $150,000 in combined emotional distress damages per respondent. If the case is litigated in civil court, the employee may recover unlimited monetary damages, including back pay, emotional distress damages, punitive damages, any other out-of-pocket losses, and attorney’s fees and costs, including expert witness fees.
Employees or job applicants who believe that they have been sexually harassed may, within one year of the harassment, file a complaint of discrimination with the California Department of Fair Employment and Housing.
Employer’s obligations
All employers have certain obligations under the law. Employers must:
- Take all reasonable steps to prevent discrimination and harassment from occurring.
- Post in the workplace a poster by the Department of Fair Employment and Housing.
- Distribute to all employees an information sheet on sexual harassment. An employer may either distribute a pamphlet (DFEH-185) or develop an equivalent document that meets the requirements of Government Code section 12950(b).
- Develop and implement a sexual harassment prevention policy.
An employer should take immediate and appropriate action when he/she knows, or should have known, that sexual harassment has occurred. An employer must take effective action to stop any further harassment and to ameliorate any effects of the harassment. To those ends, the employer’s policy should include provisions to:
- Fully inform the complainant of his/her rights and any obligations to secure those rights.
- Fully and effectively investigate. The investigation must be immediate, thorough, objective and complete. All persons with information regarding the matter should be interviewed. A determination must be made and the results communicated to the complainant, to the alleged harasser, and, as appropriate, to all others directly concerned.
- If proven, there must be prompt and effective remedial action. First, appropriate action must be taken against the harasser and communicated to the complainant. Second, steps must be taken to prevent any further harassment. Third, appropriate action must be taken to remedy the complainant’s loss, if any.
Employer liability
If harassment occurs, an employer may be liable even if management was not aware of the harassment. An employer might avoid liability if the harasser is a rank and file employee and if the employer had no knowledge of the harassment and there was a program to prevent harassment. If the harasser is a rank and file employee and the employer was aware of the harassment, liability may be avoided if the employer took immediate and appropriate corrective action to stop the harassment.
Employers are strictly liable for harassment by their supervisors or agents. Harassers, including both supervisory and non-supervisory personnel, may be held personally liable for harassing an employee or coworker or for aiding and abetting harassment.
Additionally, the law requires an entity to take “all reasonable steps to prevent harassment from occurring.” If an employer has failed to take such preventive measures, that employer can be held liable for the harassment. A victim may be entitled to damages even though no employment opportunity has been denied and there is no actual loss of pay or benefits.
Prevention and training
All employees should be made aware of the seriousness of violations of the sexual harassment policy. Supervisory personnel should be educated about their specific responsibilities. Rank and file employees must be cautioned against using peer pressure to discourage harassment victims from using the internal grievance procedure.
An employer with 50 or more employees must provide at least two hours of classroom or other effective interactive training and education regarding sexual harassment to all supervisory employees who are employed as of July 1, 2005, and to all new supervisory employees within six months of their assumption of a supervisory position. The law specifically states that the 50 employees need not be within California. An employer with 50 total employees is covered, even if just a few workers are in California (though supervisors in other states would not require this training under California law).
The training and education must include information and practical guidance regarding the federal and state statutory provisions concerning the prohibition against and the prevention and correction of sexual harassment and the remedies available to victims of sexual harassment in employment. It also include practical examples aimed at instructing supervisors in the prevention of harassment, discrimination, and retaliation, and must be presented by trainers or educators with knowledge and expertise in the prevention of harassment, discrimination, and retaliation.
Employers must also include content regarding abusive conduct, defined as conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer's legitimate business interests. Abusive conduct may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person's work performance. A single act shall not constitute abusive conduct, unless especially severe and egregious. Employers should note that abusive conduct does not need to be based on membership in a protected class (age, national origin, gender, etc.).
Employers must instruct supervisors to report any complaints of misconduct to a designated company representative, such as a human resources manager, so the company can try to resolve the claim internally. This direction should be included in the company’s harassment, discrimination, and retaliation policy (see further requirements for this policy below) Employers with 50 or more employees are required to include supervisors’ reporting obligations as a topic in mandated sexual harassment prevention training.
Recordkeeping
Covered entities must preserve any and all applications, personnel, membership, or employment referral records and files for a minimum of two years after they are initially created or received. Employers must retain personnel files of applicants or terminated employees for a minimum of two years after the date of the employment action taken.
Upon notice that a verified complaint has been filed, any covered entity must maintain and preserve any and all records and files until the complaint is fully and finally disposed of and all appeals or related proceedings terminated.
A licensing board must keep records of applications for licensing or certification for two years following the date of receipt of the applications.
Policy requirements
Effective April 1, 2016, employers must develop a harassment, discrimination, and retaliation policy that:
- Is in writing;
- Lists all current protected classes under the state’s Fair Employment and Housing Act (FEHA);
- Indicates that the law prohibits coworkers and third parties, as well as supervisors and managers (with whom employees come into contact) from engaging in discrimination, harassment, or retaliation;
- Creates a complaint process to ensure that complainants receive:
- The employer’s designation of confidentiality (to the extent possible).
- A timely response;
- Impartial and timely investigations by qualified personnel;
- Documentation and tracking for reasonable progress;
- Appropriate options for remedial actions and resolutions; and
- Timely closures.
- Provides a complaint mechanism that does not require employees to complain directly to their immediate supervisors, including, but not limited to, the following:
- Direct communication either orally or in writing, with a designated company representative, such as a human resources manager, EEO officer, or other supervisor; and/or
- A complaint hotline; and/or
- Access to an ombudsperson; and/or
- Identification of the Department and the U.S. Equal Employment Opportunity Commission (EEOC) as additional avenue s for employees to lodge complaints.
- Instructs supervisors to report any complaints of misconduct to a designated company representative, such as a human resources manager, so the company can try to resolve the claim internally. Employers with 50 or more employees are required to include this as a topic in mandated sexual harassment prevention training, pursuant to section 11024 of these regulations.
- Indicates that when an employer receives allegations of misconduct, it will conduct a fair, timely, and thorough investigation that provides all parties appropriate due process and reaches reasonable conclusions based on the evidence collected.
- Indicates that if at the end of the investigation misconduct is found, appropriate remedial measures shall be taken.
- Makes clear that employees shall not be exposed to retaliation as a result of lodging a complaint or participating in any workplace investigation.
An employer whose facility or establishment contains 10 percent or more of persons who speak a language other than English as their spoken language shall translate the policy into every language that is spoken by at least 10 percent of the workforce.
Employers must disseminate the policy by one or more of the following methods:
- Printing and providing a copy to all employees with an acknowledgment form for the employee to sign and return;
- Sending the policy via e-mail with an acknowledgment return form;
- Posting current versions of the policies on a company intranet with a tracking system ensuring all employees have read and acknowledged receipt of the policies;
- Discussing policies upon hire and/or during a new hire orientation session; and/or
- Any other way that ensures employees receive and understand the policies.
Posting
All employers must post the Department of Fair Employment and Housing’s poster “Harassment or Discrimination in Employment is Prohibited by Law” (DFEH-162).
Each employer must obtain the information sheet on sexual harassment and distribute this information sheet to employees, unless the employer provides equivalent information that contains, at a minimum, components on the following:
- The illegality of sexual harassment.
- The definition of sexual harassment under applicable state and federal law.
- A description of sexual harassment, utilizing examples.
- The internal complaint process of the employer available to the employee.
- The legal remedies and complaint process available through the department and the commission.
- Directions on how to contact the department and the commission.
- The protection against retaliation provided by Section 7287.8 of Title 2 of the California Code of Regulations for opposing the prohibited practices or for filing a complaint with, or otherwise participating in an investigation, proceeding, or hearing conducted by, the department or the commission.
The information sheet or information required must be delivered in a manner that ensures distribution to each employee, such as including it with an employee’s pay. A claim that the information did not reach a particular individual will not in and of itself result in the liability of any employer to any present or former employee or applicant in any action alleging sexual harassment. Conversely, an employer’s compliance does not insulate the employer from liability for sexual harassment of any current or former employee or applicant.
Cover Up Accountability Act
The Sexual Abuse and Cover Up Accountability Act, effective on January 1, 2023, creates a one-year revival period for a plaintiff to bring a claim that would otherwise be barred because the statute of limitations expired if the plaintiff alleges that: (1) the plaintiff was sexually assaulted; (2) one or more entities are legally responsible for damages arising out of the sexual assault; and (3) the entities (including their officers, directors, representatives, employees, or agents), engaged in a cover up or attempted cover up of a previous instance or allegation of sexual assault. A plaintiff has until December 31, 2023, to bring such a claim.
Under the statute, a cover up means “a concerted effort to hide evidence relating to a sexual assault that incentivizes individuals to remain silent or prevents information relating to a sexual assault from becoming public or being disclosed to the plaintiff.” These efforts include the use of nondisclosure agreements or confidentiality agreements.
State
Contact
Department of Fair Employment and Housing, which prosecutes cases before the Fair Employment Housing Commission
Regulations
California Code of Regulations, Title 2, Division 4.1, Subchapter 2, Article 2, §11024 - Sexual Harassment Training and Education
California Government Code Section 12940-12951
Federal
Contact
Equal Employment Opportunity Commission (EEOC)
Regulations
29 CFR Part 1604, Guidelines on Discrimination Because of Sex
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Copyright 2024 J. J. Keller & Associate, Inc. For re-use options please contact copyright@jjkeller.com or call 800-558-5011.