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Prepared By: Melissa C. Marsh, Los Angeles Employment Attorney
Written: March 2009

According to the Department of Fair Employment and Housing ("DFEH") 24% of all claims filed with the DFEH are harassment claims. According to various national surveys over 50% of all employees either are involved in, or know someone who is involved in, a workplace romance. Many of these employees also claim that they have successfully hid the romance from their boss. The problem… When some of these relationships end, they can turn into major headaches for the employer. Although most businesses have taken some measures to prevent sexual harassment, most have not done enough.

So why is this important?

Combating a sexual harassment claim can cost an employer dearly. For example, following a three-day hearing in 2003, the Commission concluded that Kurt J. Bottoms violated the Fair Employment and Housing Act by subjecting his female employee to both quid pro quo ("something for something"), a hostile work environment, and sexual harassment. The Commission required Bottoms to pay the complainant $100,000 for emotional distress, $12,486 for lost wages, and a $25,000 civil penalty for violating for the Ralph Civil Rights Act. The Commission also ordered Bottoms to pay a $30,000 administrative fine directly to the state's General Fund. According to DFEH Director Suzanne M. Ambrose, "The Commission's decision reiterates that sexual harassment and acts of violence will not be tolerated in California workplaces…"

California law presently requires ALL California employers to do the following:

1. Display the DFEH Poster on Sexual Harassment in a Conspicuous Place. Common posting areas include next to a time clock, on a company bulletin board in the break room, or in any other prominent location where employees are likely to gather.
   
   
2. Distribute A Sexual Harassment Fact Sheet. Pursuant to California law, employers are required to provide all employees with a fact sheet on sexual harassment which: (a) defines sexual harassment; (b) states that sexual harassment is illegal; (c) describes conduct that constitutes sexual harassment; (d) identifies the employer's internal complaint procedure; (e) describes the legal remedies and complaint process available from the DFEH and Fair Employment and Housing Commission ("FEHC"); (f) provides directions on how to contact the DFEH and FEHC; and (g) informs employees that retaliation is unlawful. The Sexual Harassment Fact Sheet must be distributed to employees in such a manner that ensures they receive it.
   
   
3. Adopt an Anti-Harassment Policy. Employers must also adopt an anti-harassment policy which should: (1) define and prohibit sexual harassment in the workplace; (2) identify the company's internal complaint procedure; (3) provide for at least 2 avenues of complaint so the employee does not have to report harassment to an offending supervisor; (4) identify the consequences for engaging in sexual harassment; (5) state the complaint will be kept confidential to the extent possible; and (6) prohibit retaliation against someone who has reported sexual harassment.
   
   
4. Take "All Reasonable Steps" Necessary to Prevent Sexual Harassment. In addition, all employers are obligated to take "all reasonable steps" necessary to prevent harassment in the workplace. This additional requirement has been interpreted to include: (1) implementing effective procedures to handle complaints of harassment; (2) promptly investigating claims of harassment; (3) taking prompt, effective corrective actions, including suspension and termination of the offending employee; and (4) preventing and effectively addressing any retaliation.
   
   
5. Train Supervisors. Effective January 1, 2005, California employers with 50 or more workers (including part time and full time employees, independent contractors, and temporary workers combined) must provide all supervisors with 2 hours of "effective and interactive" sexual harassment training every two years. In addition, all new supervisory employees must be trained within 6 months of stepping into the supervisory position, and every two years thereafter. Supervisors are defined by statute as individuals having the authority to hire, fire or discipline employees, or the ability to influence such actions, the responsibility to direct employees, or the responsibility to address employee grievances.

California Employers Should Also Adopt the Following Optional Practices:

• Ensure company executives are directly involved in delivering the message that all forms of harassment will not be tolerated;
  
  
• Periodically remind employees about your company's anti-harassment policy and the consequences for violating it;
  
  
• Require employees who investigate harassment complaints to take extra classes on how to conduct an effective investigation;
  
  
• Consider adopting policies addressing romantic relationships, dating of co-workers, and conflict of interest;
  
  
• Periodically review and audit your sexual harassment policies and procedures; and
  
  
• Train ALL employees on sexual harassment.

Although California law only requires employers with 50+ employees to have supervisors attended sexual harassment training courses every two years, all California employers should have ALL of their employees, not just supervisors, trained on sexual harassment. Doing so can significantly reduce the possibility of a harassment lawsuit, and if one is brought the fact that the employer requires all employees to attend a harassment training course can help establish a defense to the allegation. Still not convinced this is necessary. The Equal Employment Opportunity Commission reviews over 15,000 sexual harassment cases annually, and jury awards frequently exceed $500,000 (including punitive damages). Can your small business afford this?

If you do opt to have your employees attend a training course, whether on the internet or in house, it is important that this training be offered by: (1) an employment attorney with at least 2 years experience, (2) a law professor with two or more year experience teaching employment law, or by (3) a human resource professional with a minimum of 2 years of practical experience in areas relating to sexual harassment training. It is also important that supervisory employees be offered training on an on-going basis, as needed.

Any Sexual Harassment Training Course should cover the following topics: (a) the legal definition of sexual harassment; (b) federal and California law addressing harassment; (c) the types of conduct that constitute harassment; (d) practical examples; (e) what an effective anti-harassment policy should cover; (f) the strategies that can be implemented to prevent harassment; (g) the limited confidentiality of the complaint process; (h) the employer’s obligation to conduct an effective investigation; (i) what the employer should do if the supervisor is personally accused of harassment; (j) how harassment complaints are filed; (k) the resources and remedies available to harassment victims; and (l) how to prevent harassment, discrimination, and retaliation. If an employer so chooses, it may (and should) opt to address other forms of harassment as part of the training program.

A well drafted and implemented preventive anti-harassment policy can reduce sexual harassment in the workplace, and can also serve as a vital defense in civil court should the need arise. If you need assistance, please do not hesitate to call 818-849-5206, or Email Us.

Related Articles:

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• How To Set Up A Telecommuting Policy and Simultaneously Limit Wage and Overtime Claims
  
  
• Employers - Employee E-mail and Text Messages Are Private, Absent an Employee Policy to the Contrary
  
  
• Intra-Company Communications Spawn Employee Defamation Lawsuits
  
  
• California Law on Age Discrimination in the Employment Setting

California employment lawyer, Melissa C. Marsh, is based in Sherman Oaks and West Hollywood, and serves individuals and businesses throughout Los Angeles County, including: West Hollywood, Miracle Mile, Beverly Hills, Century City, Santa Monica, Burbank, North Hollywood, Valley Village, Toluca Lake, Studio City, Sherman Oaks, Van Nuys, Encino, and Woodland Hills.

© 2009 Melissa C. Marsh. All Rights Reserved.

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