June 2, 2020

The California Fair Employment and Housing Act (“FEHA”)  [Gov. Code § 12900, et seq.] prohibits discrimination and harassment against an employee based on sex (among other things), and also prohibits retaliation for complaining about discrimination and/or harassment.  As a matter of public policy, the FEHA recognizes the need to protect and safeguard the right and opportunity of all persons to seek and hold employment free from discrimination, harassment, and retaliation.  [Gov. Code § 12920.] The California state legislature has directed that the FEHA be construed liberally so as to accomplish its purposes.  [Gov. Code § 12993. ]  Moreover, the California Supreme Court has specifically held that one’s right to be free from discrimination and harassment in the workplace is “fundamental.”  [Brown v. Superior Court (1984) 37 Cal.3d 477.] There are two types of sexual harassment – hostile work environment sexual harassment, and quid pro quo sexual harassment.  This article addresses hostile work environment sexual harassment, in particular, who can be liable for claims of sexual harassment under the FEHA.

To state a valid case of “hostile work environment” sexual harassment under the FEHA, a plaintiff must allege:  1) She or he was subjected to unwelcome sexual advances, conduct or comments; (2) The harassment complained of was based on sex; and 3) The harassment was “so severe or pervasive” as to “alter the conditions of the victim’s employment and create an abusive working environment.”  [Meritor Sav. Bank v. Vinson (1986) 477 U.S. 57, 67.] Hostile work environment harassment generally occurs when the plaintiff’s work environment is made hostile or abusive by sexual misconduct.  [Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1045.]  Hostile work environment sexual harassment cases may involve various forms of verbal and physical conduct, of both a sexual or nonsexual nature, which have the purpose or effect of creating a hostile or offensive work environment.  [Faragher v. City of Boca Raton (1998) 524 U.S. 775, 789.]

The actual harasser is not the only one who is liable for hostile environment sexual harassment; someone who incites, compels, or coerces another person into performing acts constituting sexual harassment, is equally as liable.  This is classic “aiding and abetting,” pursuant to Government Code section 12940(I).  This “aider” can either be a co-worker or someone in a supervisory position.

An employer is automatically liable for sexual harassment by an employee who is in a supervisory position.  However, employer liability for the acts of a co-worker (in a non-supervisory position) is possible only if the employer knew or should have known of the ongoing harassment and failed to take immediate and appropriate corrective action.  [Gov. Code § 12940(j).]  Therefore, if a victim of sexual harassment is diligent in reporting these incidents to a supervisor or someone in a position of authority (reports in writing are preferable), a victim of sexual harassment will be more likely to prevail in a claim against his or her employer.  Further, an employer may also be held liable when an employee harasses a person who is not an employee, but rather a person providing services for the employer pursuant to a contract, such as an independent contractor.  [Hirst v. City of Oceanside (2015) 236 Cal.App.4th 774, 782-791.]

Once an employer learns of a sexual harassment complaint, an employer has a duty to conduct a prompt and fair investigation to determine whether the complaint is justified.  [Swenson v. Potter (9th Cir. 2001) 271 F.3d 1183, 1193; Baldwin v. Blue Cross/Blue Shield of Alabama (11th Cir. 2007) 408 F.3d 1287, 1303.] This requires much more than simply asking the harasser if he or she did what has been alleged.

Some (but not all) benchmarks of a reasonable investigation by an employer may include the extent to which it implements the applicable practices set forth in the Employee Handbook, the extent to which it investigates (including interviewing all potential witnesses), the neutrality of the investigation, and the time it took the employer to respond after learning of the complaint.

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ESKRIDGE LAW may be contacted by phone (310/303-3951), by fax (310/303-3952) or by email (geskridge@eskridgelaw.net).  Please visit our website at eskridge.hv-dev.com.

This article is based on the law as of the date posted at the top of the article.  This article does not constitute the provision of legal advice, and does not by itself create an attorney-client relationship with Eskridge Law.