Article by Janean Acevedo Daniels April 4, 1996
Potential Liability An employer may be liable for sexual harassment even when it is unaware that the harassment is occurring. For example, an employer is liable for "quid quo pro" sexual harassment--where the harasser conditions employment benefits on sexual favors--regardless of the employer's knowledge of such behavior. Employers are also liable for sexual harassment that creates a hostile and intimidating work environment where the harasser is the complaining employee's supervisor. If the harasser in a "hostile work environment" case is a co-worker rather than a supervisor, the employer is liable if it knew or should have known of the harassment and failed to adequately investigate and remediate the situation. Accordingly, employers must make a diligent effort to prevent, promptly investigate, and remediate sexual harassment. Prevention California's Fair Employment and Housing Act ("FEHA") and federal guidelines promulgated by the Equal Employment Opportunity Commission ("EEOC") require an employer to take all steps necessary to prevent sexual harassment from occurring. Under the EEOC guidelines, preventative measures include taking steps to sensitize employees to the issue, expressing strong disapproval of sexual harassment, developing appropriate sanctions, informing employees of their right to raise the issue, and informing employees how to register a complaint. The FEHA requires all employers to obtain from the Department of Fair Employment and Housing ("DFEH") an information sheet regarding sexual harassment. The DFEH notice (or its equivalent) must be distributed to all employees. The notice must describe the illegality of sexual harassment and must define and give examples of it. The notice must also explain internal and external procedures and remedies available to employees, give directions on contacting certain enforcement agencies, and inform employees that they are protected against retaliation in filing a complaint or participating in an investigation. In addition to the DFEH notice, employers should adopt and distribute to employees a policy against sexual harassment. The policy should include, at a minimum, the essential information set forth in the DFEH notice. Employers should also consider arranging seminars and training sessions on sexual harassment and discrimination issues for all employees, particularly those in management positions. Investigation Adequate investigation of an employee's sexual harassment complaint requires a prompt, thorough, and sensitive response by an employer. The following steps may be used as a guideline in conducting such an investigation: 1. Designate a qualified individual to conduct the investigation - Select a person with proper training and experience (i.e., knowledge of personnel matters in general and sexual harassment in particular). The person designated should have no particular bias with regard to the situation in question. Consider involving legal counsel at this early stage to protect the investigation under the attorney-client privilege, particularly if the complaint raises the possibility of significant exposure. 2. Meet with the employee making the complaint - This meeting has two purposes: (a) to understand the employee's concerns and obtain the employee's version of the facts; and (b) to reassure the employee that the employer takes her allegations seriously and is committed to thoroughly investigating the matter. At the outset of the interview, ask the complaining employee if she believes that there is any reason why the investigator cannot be fair and objective. If the employee expresses serious reservations about a particular investigator, consider having another person handle the investigation. Question the employee about the facts of the harassment and how it has affected the employee's work environment. Ask whether the employee's ability to work is still being affected; who was involved and/or who witnessed the incident; who the employee spoke to regarding the incident; and whether any documents exist regarding the incident. Find out whether the employee is aware of any other instances of harassment by the alleged harasser. Ask the employee what her suggestions are for resolving the situation. Encourage, but do not require, the employee to submit a written statement to document her specific concerns as precisely as possible. Never require the complaining employee to confront or meet with the accused harasser. Assure the complaining employee that you will take steps to maintain the confidentiality of the matter by limiting the disclosure of the information to those who have a "need to know." Instruct the employee to do the same. Inform the employee that she is protected by law from any retaliation as a result of raising her complaint, and that she should immediately report any such retaliation to the investigator. Finally, tell the employee that she will be informed of the results of the investigation and any remedial action taken. 3. Prepare a detailed summary of the meeting - Consider giving a copy of the summary to the employee to confirm the discussion and avoid any misunderstanding of the issues. 4. Interview any potential witnesses - These employees should also be advised of the importance of maintaining confidentiality and of their right to be free from retaliation. 5. Interview the alleged harasser to obtain his version of the events - Explain the allegations in detail and ask the alleged harasser whether he has any additional information that would help the employer understand the situation. Once again, stress the seriousness of the allegations and the importance of maintaining confidentiality. Leave difficult or confrontational questions for the end to avoid alienating the individual at the outset. 6. Prepare an investigation summary - Thoroughly document the issues discussed in all the interviews immediately after they are conducted. When the investigation is complete, summarize the information in a written investigation summary. Gather any witness statements or other documentation and place them in a consolidated investigation file. 7. Notify the parties of the results - Meet (separately) with the complaining employee and the alleged harasser to tell them the results of the investigation and explain what, if any, disciplinary and/or remedial measures will be taken. Give each of them a detailed written memo with the same information.
The Ninth Circuit has announced a stringent standard for remediating sexual harassment in the workplace. Remedial measures must be "reasonably calculated to end the harassment" and employers "should impose sufficient penalties to assure a workplace free from sexual harassment." Ellison v. Brady, 924 F.2d 872, 882 (9th Cir. 1991). In evaluating the adequacy of the employer's response, the court may consider whether the remedy was effective in stopping the harassment. Id. In Ellison, the harassing co-worker pestered the complaining employee for dates and wrote her disturbing notes. The employer, the IRS, transferred the harasser to another office but told the harasser he could return in six months. The complaining employee became frightened at the prospect of the harasser's return to the office and filed an internal complaint that resulted in a federal court action. The district court found that the IRS had adequately remedied the harassment and granted summary judgment in its favor. The Ninth Circuit reversed, finding that disputed issues of fact existed regarding the sufficiency of the IRS' response to the situation. The Ninth Circuit noted that the IRS only told the harasser to stop. Ellison, 924 F.2d at 882. The IRS failed to condemn the behavior, reprimand the harasser, or warn him that repeated harassment would result in suspension or termination. Id. The court warned that "employers send the wrong message to potential harassers when they do not discipline employees for sexual harassment." Id. In another Ninth Circuit case, Intlekofer v. Turnage, 973 F.2d 773 (9th Cir. 1992), the employer repeatedly warned the harasser to discontinue his behavior and told him he would be disciplined if he did not. Although the harassment continued, the employer failed to impose any disciplinary measures. The Ninth Circuit held that the response was insufficient because the employer failed to take steps reasonably calculated to end the harassment. Id. at 781. The court indicated that an oral warning is sufficient "only as a first resort," and that if the harassment continues, an employer "must impose more severe measures in order to ensure that the behavior terminates." Id. at 780. Otherwise an employer's initial warning is nothing more than an "empty threat." Id. The court also implied that, at a minimum, an employer must impose some form of discipline in every case, even if it is merely a stern warning. Id. at 778. Ellison and Intlekoffer also announced two guidelines employers should follow in remediating workplace harassment. First, even if the harasser ceases his overtly harassing behavior, "in some cases the mere presence of an employee who has engaged in particularly severe or pervasive harassment can create a hostile working environment. Ellison, 924 F.2d at 883 (emphasis added). Where the harassment involves physical force, touching, "stalking," or any other actions that cause the complaining employee to fear the harasser, an employer should immediately remove the harasser from the complaining employee's work environment and preclude any contact between the individuals. Second, employers must remedy sexual harassment without adversely affecting the complaining employee's terms or conditions of employment. Ellison at 881-882; Intlekofer at 780, fn. 9. Thus, an employer cannot transfer the complaining employee to a less desirable work location or in any way "punish" her in an attempt to remedy the situation. Finally, the employer should continue to monitor the situation to assure that the harassing behavior ceases.
Sexual Harassment and Discrimination Reporter, Vol. 1, No. 3 (8/96) Additional Published Articles by Janean Acevedo Daniels: "The Superior Court's Latest Word on Sexual Harassment: Harris v. Forklift Systems," Santa Barbara Women Lawyers Newsletter, Vol. 5, Issue No. 2 (Summer 1994) "Court-Ordered
Cesareans: A Growing Intrusion into the Lives of Indigent Women,"
13 Clearinghouse Review 1064 (1988) |
