Important Disclaimer

July 2005

Preventing Sexual Harassment Claims
Prepared By: Melissa C. Marsh

According to the Department of Fair Employment and Housing ("DFEH") 24% of all claims filed with the DFEH are harassment claims. According to various national surveys over 50% of all employees either are involved in, or know someone who is involved in, a workplace romance. Many of these employees also claim that they have successfully hid the romance from their boss. The problem… When some of these relationships end, they can turn into major headaches for the employer. Although most businesses have taken some measures to prevent sexual harassment, most have not done enough.

So why is this important?

Combating a sexual harassment claim can cost an employer dearly. For example, following a three-day hearing in 2003, the Commission concluded that Kurt J. Bottoms violated the Fair Employment and Housing Act by subjecting his female employee to both quid pro quo ("something for something"), a hostile work environment, and sexual harassment. The Commission required Bottoms to pay the complainant $100,000 for emotional distress, $12,486 for lost wages, and a $25,000 civil penalty for violating for the Ralph Civil Rights Act. The Commission also ordered Bottoms to pay a $30,000 administrative fine directly to the state's General Fund. According to DFEH Director Suzanne M. Ambrose, "The Commission's decision reiterates that sexual harassment and acts of violence will not be tolerated in California workplaces…"

California law presently requires all California employers to do the following:

1. Display the DFEH Poster on Sexual Harassment in a Conspicuous Place. Common posting areas include next to a time clock, on a company bulletin board in the break room, or in any other prominent location where employees are likely to gather.

2. Distribute A Sexual Harassment Fact Sheet. Pursuant to California law, employers are required to provide all employees with a fact sheet on sexual harassment which: (a) defines sexual harassment; (b) states that sexual harassment is illegal; (c) describes conduct that constitutes sexual harassment; (d) identifies the employer's internal complaint procedure; (e) describes the legal remedies and complaint process available from the DFEH and Fair Employment and Housing Commission ("FEHC"); (f) provides directions on how to contact the DFEH and FEHC; and (g) informs employees that retaliation is unlawful. The Sexual Harassment Fact Sheet must be distributed to employees in such a manner that ensures they receive it.

3. Adopt an Anti-Harassment Policy. Employers must also adopt an anti-harassment policy which should: (1) define and prohibit sexual harassment in the workplace; (2) identify the company's internal complaint procedure; (3) provide for at least 2 avenues of complaint so the employee does not have to report harassment to an offending supervisor; (4) identify the consequences for engaging in sexual harassment; (5) state the complaint will be kept confidential to the extent possible; and (6) prohibit retaliation against someone who has reported sexual harassment.

4. Take "All Reasonable Steps" Necessary to Prevent Sexual Harassment. In addition, all employers are obligated to take "all reasonable steps" necessary to prevent harassment in the workplace. This additional requirement has been interpreted to include: (1) implementing effective procedures to handle complaints of harassment; (2) promptly investigating claims of harassment; (3) taking prompt, effective corrective actions; and (4) preventing and effectively addressing any retaliation.

5. Train Supervisors. Effective January 1, 2005, California employers with 50 or more workers (employees, independent contractors, and agents combined) must provide all supervisors with 2 hours of "effective and interactive" sexual harassment training by January 1, 2006, and every two years thereafter. Supervisors are defined by statute as individuals having the authority to hire, fire or discipline employees, or the ability to influence such actions, the responsibility to direct employees, or the responsibility to address employee grievances.

• Train ALL employees, not just supervisors, on sexual harassment;

• Ensure company executives are directly involved in delivering the message that all forms of harassment will not be tolerated;

• Periodically remind employees about your company's anti-harassment policy and the consequences for violating it;

• Require employees who investigate harassment complaints to take extra classes on how to conduct an effective investigation;

• Consider adopting policies addressing romantic relationships, dating of co-workers, and conflict of interest; and

• Periodically review and audit your sexual harassment policies and procedures.

© Melissa C. Marsh 2005 All Rights Reserved.

If you have any questions, or would like further information, please e-mail us at
mmarsh@yourlegalcorner.com or call: 323-655-1002.

Disclaimer: This article has been prepared by Melissa C. Marsh for general informational purposes only and does not constitute legal advice. Readers should not rely or act upon the information contained in this article for any purpose without seeking legal advice from a local licensed attorney in your state. This article is not, and should not be used as, a substitute for legal advice as your specific factual circumstances may differ, the laws of your jurisdiction may differ, and the laws may have changed. Your use of this Internet site does not create an attorney-client relationship. Transmission of this article is not intended to create, and receipt of it does not constitute, an attorney-client relationship. All uses of the contents of this site, other than personal uses, are prohibited.