Sexual Harassment Prevention 101: Critical Training for Employers & Employees

Purpose of Training and Education
As an employee, why should I go to a sexual harassment training? As an employer, why should I provide sexual harassment training? Many people recognize overt and blatant sexual harassment, but what about more subtle and covert instances? Sexual harassment is still a widespread problem that occurs across all sectors of employment. Sexual harassment violates a victim’s personal dignity, privacy, psychological well-being, and personal boundaries.

Sexual harassment training enables employees and employers to identify and avoid and/or correct behavior which might harm others and lead to liability.

Some states require sexual harassment training and in most states, citizens have a right to work in an environment free from discrimination and sexual harassment because of one’s gender. Sexual harassment training provides the definition of sexual harassment and the tools to recognize sexual harassment. Training and education allows the employer and employee to understand rights and responsibilities to prevent harassment from occurring, stop harassment when it occurs, and understand the available legal redress and remedies.

What is Sexual Harassment?

Sexual harassment can be unwanted and unwelcome visual, verbal, or physical conduct of sexual nature or requests for sexual favors. This definition includes many forms of offensive behavior and includes gender-based harassment of a person of the same sex as the harasser. Examples of harassment include unwanted sexual advances and touching, offering employment benefits in exchange for sexual favors, threatening reprisals after negative response to sexual advances, leering, displaying sexually suggestive objects, using derogatory comments or jokes, graphic verbal commentaries about an individual’s body, and sexually degrading words used to describe an individual. One court defined “harassment” as “conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives. (Reno v. Baird (1998) 18 Cal.4th 640, 645.)
Sexual harassment laws are not a “general civility code” for the American workplace. The laws “do not reach genuine but innocuous differences in the way men and woman routinely interact with members of the same sex and of the opposite sex. The prohibition of harassment on the basis of sex requires neither asexuality nor androgyny in the workplace; it forbids only behavior so objectively offensive as to alter the ‘conditions’ of the victim’s employment.” (Oncale v. Sundowner Offshore Services, Inc. (1998) 523 U.S. 75, 81.)

The Law and Who Can be Liable

Applicability to Employers

Applicable federal law for employers with 15 or more employees includes Title VII of the 1964 Civil Rights Act (42 U.S.C. §2000 e et. seq.) and Equal Employment Opportunity Commission Guidelines on Discrimination Because of Sex (29 Code Fed. Regs., §1604.00(a).

A version of the Fair Employment and Housing Act outlines the state laws for most states. In some states, laws are more expansive than the federal requirements. For example, some states may define an employer as any person regularly employing one or more persons. “Person” typically means corporations, partnerships, limited liability companies, associations as well as individuals.

Supervisors, managers, or agents can be held liable. The employer may be held liable only if the victim of the harassment suffered an adverse tangible employment action. If so, the employer is vicariously liable. (Burlington Industries, Inc. v. Ellerth (1998) 524 U.S. 742, 765.) A tangible employment action can include demotion, hiring, firing, promotion, transfer, etc.

“The supervisor is deemed to act on behalf of the employer when making decisions that affect the economic status of the employee. From the perspective of the employee, the supervisor and employer merge into a single entity.” (Faragher v. City of Boca Raton (1998) 524 U.S. 775, 790.) Federal law does not define a “supervisor;” therefore, agency principles may provide guidance. Vicarious liability is imposed upon the employer when a supervisor engages in harassment because supervisors are aided in their misconduct by the authority delegated to them. Thus, their level of authority must be sufficient to allow the harasser to explicitly or implicitly carry out the harassment.

Federal courts also hold the employer is liable for harassment when the harasser’s rank within the organization falls “within that class…who may be treated as the organization’s proxy.” (Faragher at 2284.) Examples include the president, owner, partner, or corporate office of the employer.
An employer can further be liable for harassment by a co-worker or a third party. If the employer knew or should have known of the harassment by a non-supervisory employee and failed to take immediate and appropriate action, the employer may be liable. Similarly, an employer may be liable if its employees are subject to workplace harassment by third parties such as clients, vendors, or customers. Again, liability will attach if the employer knew or should have known the harassment was occurring and failed to take immediate action to preserve the employee’s right to work in an environment free from offensive conduct. (Lockard v. Pizza Hut, Inc. (10th Cir. 1998) 162 F.3d 1062, 1072.)

Applicability to Employees

“Employee” generally includes just about everyone, except persons working for their parents or spouse or child. The U.S. Court of Appeals for the Ninth Circuit ruled in 1993 that individual supervisors are not liable under Title VII for their own harassing conduct. In Miller v. Maxwell’s International, Inc. (9th Cir. 1993) 991 F.2d 583, 587, the court noted the language of Title VII only assigns liability to the “employer.” Some federal courts have relied upon the statute’s use of the term “agent” to find supervisors liable for their workplace conduct, but only in their “official,” not “individual” capacities.

However, under California law, any employee (co-workers and supervisors, managers, or agents) who engage in sexual harassment can be held personally liable for the harm caused by their own conduct, regardless of whether the harasser’s employer can also be held liable. (Gov. Code, §12940, subd, (j)(l).)

Takeaways

Sexual harassment education and training is the greatest tool for prevention. Prior to training, many employees do not realize their actions, i.e. crude jokes or suggestive comments, could in certain circumstances be construed as sexual harassment and subject them and their employer to liability. Further, these programs aid the employer in limiting its damages if it is ever sued for sexual harassment. Proper education and training could potentially limit the amount of damages awarded a victim if the employer can show it took 1) reasonable steps to prevent and correct workplace sexual harassment; 2) the sexual harassment victim unreasonably failed to use the preventive and corrective measures the employer provided; and 3) reasonable use of employer’s procedures would have prevented at least some of the harm the employee suffered.

It is imperative employers and their Human Resources departments stay updated on the changing laws and provide annual training to prevent harassment in the workplace and ultimately aid in their defense if sued. Here at Tyson & Mendes, we specialize in employment law and can aid employers in creating and maintaining sexual training education programs.

ABOUT THE AUTHORS: Susan L. Oliver is a partner at Tyson & Mendes. Ms. Oliver leads the Professional Liability practice and handles employment matters. Contact Susan at 858.263.4134 or soliver@tysonmendes.com.

Jessica G. Heppenstall graduated from California Western School of Law in 2008. Ms. Heppenstall’s focus is on general liability, employment, and personal injury. Contact her at 858.263.4120 or jheppenstall@tysonmendes.com.

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