Employers Have a Duty to Prevent Sexual Harassment

An employer’s duty to prevent sexual harassment is statutory. Government Code §12940(k) makes it unlawful for “an employer . . . to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.” Weeks, 63 Cal.App.4th at 1146; Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 286. See also Gov’t. Code §12940(j)(1) (requiring employer “to take immediate and appropriate corrective action” upon notice of co-worker harassment, and to “take all reasonable steps to prevent harassment from occurring”).

“Such steps may include affirmatively raising the subject of harassment, expressing strong disapproval, developing appropriate sanctions, informing employees of their right to raise and how to raise the issue of harassment under California law, and developing methods to sensitize all concerned.” 2 CCR §7287.6(b)(3); 29 C.F.R. §1604.11(f).

The duty to prevent and remedy harassment is an affirmative duty imposed on all employers, and it includes a duty to promptly and thoroughly investigate all allegations of harassment. Northrop Grumman Corp. v. Workers’Compensation Appeals Board (2002) 103 Cal.App.4th 1021, 1035 (“Prompt investigation of a discrimination claim is a necessary step by which an employer meets its obligation to ensure a discrimination-free work environment.”); Malik v. Carrier Corp. (2nd Cir. 2000) 202 F.3d 97, 105 (“[A]n employer’s investigation of a sexual harassment complaint is not a gratuitous or optional undertaking.”).

“The reasonableness of an employer’s remedy will depend on its ability to stop harassment by the person who engaged in harassment.” Ellison, 924 F.2d at 881-882. To meet its duty to prevent harassment, an employer must implement an adequate policy concerning internal harassment investigations. DFEH v. Madera County (1990) FEHC Dec. No. 90-03; 1990 WL 312871, *23 (“employer should have in place, and inform its employees about, an adequate procedure for handling sexual harassment and discrimination complaints as part of its independent legal obligation to ‘prevent’ harassment from occurring” and “failure, then, to implement such a policy and procedure may itself constitute a violation of subdivisions (h) and (i).”).

At the core of a reasonable investigation policy is taking all reasonable steps to conclude whether or not harassment occurred. Wellpoint Health Networks, Inc. v. Superior Court (1997) 59 Cal.App.4th 110, 126 (“Whatever [remedial] course of action the employer chooses to take, an effective remedy is unlikely to take shape in the absence of a thorough investigation of the alleged harassment.

Both the Department of Fair Employment & Housing (DFEH) and the Equal Employment Opportunity Commission (EEOC) explicitly require that an employer conducting a harassment investigation determine (if possible) whether in fact harassment occurred. The FEHA expressly requires that an employer provide every employee with a copy of the DFEH “information sheet” (DFEH-185) or an alternative policy with the same information. Gov’t. Code §12950(b).

The DFEH “information sheet” explicitly states that an employer must “fully and effectively investigate” all harassment complaints in a “thorough, objective and complete” manner and that, upon conclusion of the investigation, “[a] determination must be made and communicated to the alleged harasser, and, as appropriate, to all others directly concerned.” DFEH-185.

The EEOC makes the same point: “Once all of the evidence is in, interviews are finalized, and credibility issues are resolved, management should make a determination as to whether harassment occurred,” and “[t]he parties should be informed of that determination.” Equal Employment Opportunity Commission Enforcement Guidance on Vicarious Liability for Unlawful Harassment by Supervisors (June 16, 1999, EEOC Notice 915.002), p. 13.6.

The FEHC has come to the same conclusion. Madera County, supra, FEHC Dec. No. 90-03; 1990 WL 312871, *20-21 (noting that employer must “remedy the situation if harassment is found to have occurred” and that part of the duty to prevent and remedy includes reporting the conclusions concerning whether harassment occurred to the complainant).

The fundamental rule of the remedial obligation is that an employer must discipline perpetrators for harassment. “Employers send the wrong message to potential harassers when they do not discipline employees for sexual harassment.” Ellison, 924 F.2d at 882 (despite nonrecurrence of the harassment, remedial obligation not met because “employer did not express strong disapproval of Gray’s conduct...and did not inform him that repeated harassment would result in suspension or termination.”).

The employer’s remedial obligation is to take prompt corrective action that is “reasonably calculated” to end the current harassment and to deter future harassment. Fuller v. City of Oakland (9th Cir. 1995) 47 F.3d 1522, 1528. Sending a stern message to discourage future harassment from the same perpetrator and others is just as important as stopping the current harassment. Fuller, 47 F.3d at 1528 (“Effectiveness will be measured by the twin purposes of ending the current harassment and deterring future harassment—by the same offender and others.”); Ellison, 924 F.2d at 882 (“In evaluating the adequacy of the remedy, the court may also take into account the remedy’s ability to persuade potential harassers from unlawful conduct.’).

If you or someone you know have been sexually harassed by a supervisor at work, call the Orange County Sexual Harassment Lawyers at 949.375.4734. The employment lawyers at Nassiri Law Group will answer your questions and inform you of your rights, so give us a call today.

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