Sacramento Employment Lawyer

Employers' Obligations to Prevent Sexual Harassment at California Workplace

Once an employer is informed of the sexual harassment, the employer must take adequate remedial measures. The measures need to include immediate corrective action that is reasonably calculate to (1) end the current harassment and (2) to deter future harassment. Sarro v. City of Sacramento (E.D.Cal. 1999) 78 F.Supp.2d 1057, 1061-1062. The employer's obligation to take prompt corrective action requires (1) that temporary steps be taken to deal with the situation while the employer determines whether the complaint is justified and (2) the permanent remedial steps be implemented by the employer to prevent future harassment once the investigation is completed. 

An employer has a wide discretion in choosing how to minimize contact between the two employees (the alleged harasser and the alleged victim), so long as it acts to stop the harassment. The reasonableness of an employer's remedy will depend on its ability to stop harassment by the person who engaged in potentially unlawful conduct at workplace. Ellison v. Brady (9th Cir. 1991) 924 F.2d 872, 882.

In Bradley v. California Department of Corrections 158 Cal.App.4th 1612 (2008), one of the claims by the employee was that the employer, the State agency, failed to prevent sexual harassment to which she was subjected by her co-worker. The court noted that while it recognized that things move slowly in the state government, the lack of action by the employer in that case was "startling." Id. at 1633. The court noted that very little investigation was done and nothing was done by the employer to make sure that the harassment stops. Each manager that the victim would approach for help would refer her to someone else over and over. The court further made an important point that an employer may be required to take remedial action even when harassment is not corroborated. Id. at 1634. This means that it's generally proper for employers to at least temporarily suspend or transfer the accused shortly after receiving a complaint before the investigation even begins, to avoid the risk of continuing to expose the victim to harassment.

Sacramento Employment Lawyer: Sexual Harassment Laws at California Workplace

California law prohibits sexual harassment in the workplace. Originally enacted in 1980, Government Code section 12940 is part of the Fair Employment and Housing Act. The prohibited conduct ranges from expressly or impliedly conditioning employment benefits on submission to, or tolerance of, unwelcome sexual advances to the creation of work environment that is "hostile or abusive to employees because of their sex." Miller v. Department of Corrections (2005) 36 Cal.4th 446, 462. 

It's important to note that the California courts have consistently held that the hostile work environment from sexual harassment is actionable only when the harassing behavior is pervasive or severe. This means that to prevail on a hostile work environment claim, an employee must show that the harassing conduct was "severe enough or sufficiently pervasive to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees because of their sex. There is no recovery for harassment that is occasional, isolated, sporadic, or trivial. Thus, the existence of a hostile work environment depends upon the totality of circumstances. Generally, the more severe the conduct is, the less pervasive it has to be in order to be actionable. Thus, a single harassing incident involving physical violence or a threat thereof may qualify as severe and extreme. Herberg v. California Institute of the Arts (2002) 101 Cal.App.4th 142, 151.

Generally, however, to be actionable - a sexually objectionable environment must be both objectively and subjectively offensive. Therefore, an employee who subjectively perceives the workplace as hostile or abusive, will not prevail if a reasonable person considering all the circumstances, would not share the same perception.