Preventing Sexual Harassment: It’s the Law in California

January 1, 2011
By

Research on Sexual Harassment and Current Training Laws

Prudent employers have trained managers and employees on preventing unlawful discrimination and harassment in the workplace for years. Such training helps employers avoid conflicts that result in litigation and can also help defend against lawsuits if they arise.

2005 Legal Requirements for Training

This course of action has become a legal responsibility since Governor Arnold Schwarzenegger signed Assembly Bill 1825 on September 30, 2004. The bill requires employers of 50 or more (including temporary service employees and independent contractors, in California, or out of state), to provide supervisors with a minimum of two hours sexual harassment training every two years.

Why Is This Needed At This Time?

Workplace sexual harassment is a serious problem in the United States, and the dimensions of the problem continue to expand. In fact, the largest sexual harassment case in the nation’s history was filed recently by the Equal Employment Opportunity Commission (EECO) and 350 female employees against Mitsubishi Motor Manufacturing of America. The total award in this class-action suit was $34 million, nearly $100,000 for each plaintiff. This, of course, is only the most costly and most publicized incident of its kind.

The EEOC reviews more than 15,000 sexual harassment cases annually, with jury awards frequently reaching $500,000 (including punitive damages). Such cases currently account for approximately 20 percent of the case load at the California Department of Fair Employment and Housing. Damage awards can be levied against both the individuals who commit sexual harassment and the organizations that employ them. Thus, it’s imperative that employees and management alike understand the legal and social implications of such activity.

Sexual harassment is a serious issue for the management of any organization because it damages employee morale, impacts careers, and negatively affects the bottom line (legal costs and punitive damages). It also creates high absenteeism, low productivity and employee turnover. Managers must take all sexual harassment complaints seriously, since they can be held personally liable and sued separately for mishandling a complaint. Sexual harassment is a potential problem for every worker and employer. It is inappropriate, antisocial behavior, and it’s the responsibility of both management and individual employees to ensure that sexual harassment is never tolerated in the workplace.

Facts About Sexual Harassment

(From the U.S. Equal Employment Opportunity Commission)
Sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964.

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitutes sexual harassment when submission to or rejection of this conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance or creates an intimidating, hostile or offensive work environment.

Sexual harassment can occur in a variety of circumstances, including but not limited to the following:

  • The victim as well as the harasser may be a woman or a man. The victim does not have to be of the opposite sex.
  • The harasser can be the victim’s supervisor, an agent of the employer, a supervisor in another area, a co-worker, or a non-employee.
  • The victim does not have to be the person harassed but could be anyone affected by the offensive conduct.
  • Unlawful sexual harassment may occur without economic injury to or discharge of the victim.
  • The harasser’s conduct must be unwelcome.

It is helpful for the victim to directly inform the harasser that the conduct is unwelcome and must stop. The victim should use any employer complaint mechanism or grievance system available.

When investigating allegations of sexual harassment, EEOC looks at the whole record: the circumstances, such as the nature of the sexual advances, and the context in which the alleged incidents occurred. A determination on the allegations is made from the facts on a case-by-case basis.

Prevention is the best tool to eliminate sexual harassment in the workplace. Employers are encouraged to take steps necessary to prevent sexual harassment from occurring. They should clearly communicate to employees that sexual harassment will not be tolerated. They can do so by establishing an effective complaint or grievance process and taking immediate and appropriate action when an employee complains.

Sexual Harassment Statistics in the Workplace

Studies suggest anywhere between 40-70% of women and 10-20% of men have experienced sexual harassment in the workplace.

Approximately 15,000 sexual harassment cases are brought to the Equal Employment Opportunity Commission (EEOC) each year. According to the EEOC, the number of sexual harassment complaints filed by men has more than tripled in recent years. Currently, approximately 11% of claims involve men filing against female supervisors.

A 1999 survey by the Society for Human Resource Management states that 62% of companies offer sexual harassment prevention training programs, and 97% have a written sexual harassment policy.

A telephone poll conducted by Louis Harris and Associates on 782 workers revealed:

  • 31% of the female workers claimed to have been harassed at work
  • 7% of the male workers claimed to have been harassed at work
  • 62% of targets took no action
  • 100% of women claimed the harasser was a man
  • 59% of men claimed the harasser was a woman
  • 41% of men claimed the harasser was another man

The High Cost of Sexual Harassment – Some Typical Cases

In Briseno v. Diamond Video World Inc., 99 D.L.R. A-6 (Cal. Ct. App. 5/22/2002) (unpublished opinion), the California Court of Appeal affirmed the $10,608 jury verdict for sex harassment of a former employee of an adult video store and the $19,123 attorney’s fee award. Briseno v. Diamond Video World Inc., 99 D.L.R. A-6 (Cal. Ct. App. 5/22/2002)

June 15, 2002 – Ballard Rosenberg Golper & Savitt

San Diego jury recently awarded $30 million in punitive damages to six female supermarket workers who accused their employer, Ralphs Grocery Company, of sexual harassment under California’s Fair Employment and Housing Act (the “FEHA”).
May 01, 2002 – O’Melveny & Myers LLP

Specifically What Training Is Required By AB 1825

Training must be provided to all employees who have “supervisory authority,” which generally includes anyone having the authority to exercise independent judgment to:

  • Hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees;
  • Direct the work of other employees or adjust their grievances; or
  • Effectively recommend any of these actions.

All employees who make recommendations to managers about such matters must receive training if their recommendations are likely to be acted upon.

The law will be implemented in two phases. First, supervisors employed as of July 1, 2005 must receive two hours of training by January 1, 2006. If a supervisor is hired or promoted into a supervisory position after July 1, 2005, the training must be completed within six months of hire or promotion. Supervisors who have received training after January 1, 2003 need not be re-trained by January 1, 2006.

The second phase begins January 1, 2006. The law requires ongoing training for all supervisors within six months of becoming supervisors, and providing them with at least two hours of anti-harassment training every two years.

The training must include information and practical guidance regarding federal and state sexual harassment laws, including harassment prevention and correction, and remedies available to victims. The training must be “interactive,” and should include opportunities for discussion, role-playing, and a question and answer session or other similar techniques led by a qualified trainer.

Failure to provide this training may be seen as grounds for punitive damages in a sexual harassment lawsuit. And, the Department of Fair Employment and Housing may order a non-compliant employer to provide the training.

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