by David A. Grabhorn, Esq. and Mary E. Gram, Esq.
The recent media fervor inspired by the salacious escapades of Bill Cosby, Harvey Weinstein and others makes it very likely that sexual harassment will be at the forefront of our collective consciousness for the foreseeable future. It has certainly generated a flurry of inquiries from employers, as well as from current and former employees, regarding the potential liability for conduct occurring on the job.
Mixed together in the likely tsunami of sexual harassment complaints about to swamp employers will be both the valid ones and those that are not actionable, because they will not rise to the level of a legal violation. Not every vulgar comment or salacious act by a co-worker is “illegal” sexual harassment.
The good news for both employers and employees going forward is that conduct constituting sexual harassment is preventable and can be managed with the implementation of appropriate workplace policies and procedures. Employers who prepare by promulgating and enforcing clear, sound policies can be protected from liability, while still protecting their valued employees from on-the-job predatory and inappropriate sexual behavior.
What Exactly Is “Illegal” Sexual Harassment? – In California, sexual harassment in the workplace is prohibited by both federal law (Title VII of the Civil Rights Act of 1964) and state law (Fair Employment and Housing Act “FEHA”). Under both, sexual harassment is essentially of two types: (1) quid pro quo harassment by supervisors where sexual activity of some kind is demanded in exchange for job benefits; and, (2) hostile environment harassment where employees are victimized because of gender through conduct or circumstances at the jobsite, even if no explicit threat to their continued employment is present.
What is Legally Actionable Quid Pro Quo Harassment? – Quid pro quo is a Latin phrase which means “this for that.” Quid pro quo harassment occurs when a person in power demands sexual conduct of some kind from a subordinate in exchange for employment benefits. Thus, when a boss explicitly makes the decision to hire, retain, promote, or assign an employee contingent upon the victim’s submission to sexual demands, a valid claim exists. It also exists if an employee is subjected to unwanted sexual advances, touching and other sexual conduct in the workplace as the price of keeping his or her job.
What Constitutes an Illegal Hostile Work Environment? – A claim for hostile environment harassment arises when employees are forced to work in an environment that is sexually offensive and so intimidating that it interferes with the victims’ work performance, even if a sex act was not demanded by a supervisor in exchange for job benefits. Unlike quid quo pro harassment, it may be the objectionable misconduct of fellow employees, rather than supervisors, that is nevertheless actionable against the employer. But the misconduct of fellow employees must be pervasive, must be seriously offensive to the reasonable person in the same circumstances, and the victim must actually be subjectively offended.
The California Supreme Court in Lyle v. Warner Bros. in considering the harassment claims of a writers’ assistant on the set of Friends who had been offended by the vulgarity, acknowledged that:
- It is only necessary to show that … if the plaintiff had been a man she would not have been treated in the same manner.
- It is the disparate treatment of an employee on the basis of sex—not the mere discussion of sex or use of vulgar language—that is the essence of a sexual harassment claim.
The Court then set out to describe a hostile work environment by stating what it is not: FEHA is not a civility code and is not designed to rid the workplace of vulgarity. While the FEHA prohibits harassing conduct that creates a work environment that is hostile or abusive on the basis of sex, it does not outlaw sexually coarse and vulgar language or conduct that merely offends.
Where the workplace is permeated with discriminatory (sex-based) intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment—liability for a hostile environment claim will exist.
When Is the Employer Liable? – The Company is strictly liable for the misconduct of supervisory or management level personnel, including conduct that creates a hostile work environment. This means the employer is liable even if upper management did not know about the conduct and had no reason to know what its lower level supervisors were doing. In contrast, the Company is only liable for the illegal hostile environment created by non-management level employee conduct if the employer knew or should have known of the harassing conduct, but failed to take corrective action.
What Should the Employer Do? – A Company will discourage much illegal conduct and protect itself from liability by promulgating clear and sensible anti-harassment policies that include a channel of communication by which an aggrieved employee may report problems to management, and then by enforcing those policies and diligently handling employee complaints in that context. The courts seem to look with more favor on employers that have established their anti-harassment policies and procedures in a well drafted employee handbook provided to every employee at the Company. Promptly investigating complaints and taking appropriate action is not only likely to boost morale, it can also mean the difference between successfully defending an action for sexual harassment and paying substantial damages.
Messina & Hankin has a Temecula Valley Law Office – contact information (951) 894-7332 – JMessina@MessinaHankinLaw.com.