Sexual Harassment is in the news again: Uber, the UC System, Fox News. The harassment scenarios at these companies involve the more “typical” sexual harassment players and facts: A male employee in a position of power sexually harassing a female subordinate in the workplace. While most employers are able to identify these “typical” scenarios, they should also be aware of less typical fact patterns that can bring rise to legal claims under California’s expansive sexual harassment law.
Sexual Harassment Law Basics
There are two types of unlawful sexual harassment in California: 1) Hostile Work Environment in which the harasser engages in offensive and unwelcome sex or gender-based conduct that is visual, verbal and/or physical, and is so severe and pervasive that it unreasonably interferes with an individual's work performance or creates and intimidating, hostile or offensive work environment or 2) Quid pro Quo in which the harasser offers or denies an employment benefit based on an individual submitting to the harasser's sexual advances, offers or demands. Under California law, employers will be held strictly liable for the supervisor/manager's harassment of an employee. Employers can also be held liable in co-worker harassment situations when the employer knew or should have known of the conduct and failed to take immediate and appropriate corrective action.
The Expansive Scope of California's Sexual Harassment Laws
Below are five additional aspects of California's sexual harassment law that employers should be aware of:
The Law Protects Non-Employees
California’s sexual harassment law obviously protects employees, but it also includes statutory protections for non-employees. Applicants and “person[s] providing services pursuant to a contract” such as independent contractors are also protected from sexual harassment under the law. On January 1, 2015, California became the third state in the country to extend protections to another class of non-employees: unpaid interns and volunteers.
The Employer can be Held Liable for “Third-Party” Harassment
An employer can be held liable for the sexually harassing conduct of non-employees involved in the operation of the business such as vendors, customers, clients and independent contractors, if the employer "knows or should have known of the conduct and failed to take immediate and appropriate corrective action.” The following are examples of real “third-party” harassment cases: A patient verbally sexually harasses the medical clinic’s receptionist in person and on phone for an extended period of time; A grocery store customer verbally and physically sexually harasses seven female employees every time he shops at the store; An independent sales representative subjects an employee of a company he visits to racist, sexist and other offensive epithets. In all of these situations, the employer was held liable because the employee/s complained about the harassment but the employer failed to take corrective action.
Employees who are Not the Target of Harassment can Bring a Legal Claim
Bystanders and witnesses who are not the direct targets of the harassing conduct may bring a legal claim against their employers if the harassment unreasonably interferes with the employees’ work or creates a hostile environment. For instance, an employee who is subjected to his/her managers viewing sexually explicit content on a computer in his/her vicinity can bring a hostile work environment claim. Another example is when a manager and subordinate engage in a consensual relationship and the manager provides the subordinate employee with preferential treatment and benefits to the detriment of more qualified employees.
Sexually Harassing Conduct Need Not be Motivated by Sexual Desire
On January 1, 2014, California amended the sexual harassment statute to state: “Sexually harassing conduct need not be motivated by sexual desire.” This amendment was passed in response to Kelley v. Conco Companies, 196 Cal. App. 4th 191 (Cal. Ct. App. 2011). In that case, the plaintiff, a male apprentice iron worker, alleged that his male coworkers made sexually-explicit and homophobic insults and threats against him. The Kelley court found that the plaintiff failed to establish that the harassing conduct was “because of sex” as required by California’s sexual harassment law since the defendants were not “motivated by sexual desire” as neither were gay. The 2014 amendment overruled the Kelley case, and employers now need to recognize and address same and opposite sex sexual harassment that may appear in form of sex and gender-based bullying.
Employers can be Held Liable for Harassment that Occurs Outside of the Workplace
Generally speaking, California law protects employees from sexual harassment at work. Work often occurs outside of the workplace, such as at off-site meetings, conferences and on business trips, and employers can be held liable for sexual harassment that occurs at these places. Work-sponsored and/or organized social events such as happy hours and holiday parties can also be considered extensions of work. The voluntary nature of these events does not insulate employers from liability. Harassment that occurs outside of the workplace can be a severe single incident or part of a broader, pervasive pattern of conduct. Thus, employers need to ensure their sexual harassment policies state that harassing conduct is prohibited on and off work premises and at company-sponsored events. Employers also need to take seriously complaints brought by employees about harassing conduct that occurred at these events, and address it like any other sexual harassment complaint (i.e. investigate, take corrective action if warranted).
Tips for Employers
In sum, what constitutes unlawful sexual harassment in California is broader than the scenarios being played out in the news. It can involve a variety of individuals, occur at numerous locations, and take various forms. It is advisable for all employers to have well-defined and comprehensive sexual harassment policies (and remember such policies are legally required for employers with five or more employees). In addition to policies, employers need to have complaint procedures and thorough investigation processes in place.
Shivani Sutaria Law Offices is available to assist employers with drafting and implementing sexual harassment policies and procedures, providing legal advice and counsel on harassment situations that arise, presenting sexual harassment trainings, and conducting investigations into harassment complaints.