While sexual harassment has been in everyone’s vocabulary since Dolly Parton’s Nine to Five graced screens in 1980, it has become a topic of increased importance and media coverage as more and more sexual harassment claims are brought against celebrities such as Bill Cosby, President-Elect Donald Trump, and former President Bill Clinton. While you or your employees may not identify with these over-the-top personalities in positions of power, sexual harassment claims are very real and very expensive.
For example, a recent claim against the popular P.F. Chang’s China Bistro chain cost the company $1 million in response to two employees’ claims that they were repeatedly sexually harassed and were subjected to a hostile work environment. According to the arbitrator’s written order, both women said they were subjected to offensive comments and conduct from the male kitchen staff at the restaurants, including jokes about sex, remarks about female workers’ bodies, and kissing and whistling noises aimed at female employees as they walked by. In addition, one of the women said she saw a group of male kitchen employees watching a pornographic video on a smartphone, and she frequently heard the cooks singing sexually explicit songs in the rear of the restaurant in University City. The reality is that these activities occur more often than you might think.
Because sexual harassment incidents cause social, economic, and psychological damage to victims, and cost employers significantly in terms of time, money, and lost productivity, it is important to prevent these incidents or mitigate them as soon as they occur.
What Is Sexual Harassment?
The Fair Employment and Housing Council (FEHC) regulations define sexual harassment as unwanted sexual advances; or visual, verbal, or physical conduct of a sexual nature. The following is a partial list of violations:
• Unwanted sexual advances
• Offering employment benefits in exchange for sexual favors
• Making or threatening reprisals after a negative response to sexual advances
• Visual conduct: leering, making sexual gestures, displaying of suggestive objects or pictures, cartoon or posters
• Verbal conduct: making or using derogatory comments, epithets, slurs, and jokes
• Verbal sexual advances or propositions
• Verbal abuse of a sexual nature, graphic verbal commentaries about an individual’s body, sexually degrading words used to describe an individual, suggestive or obscene letters, notes or invitations
• Physical conduct: touching, assault, impeding or blocking movements
Under California law, employers are strictly liable when a supervisor or manager is responsible for the harassment. This means that the employer can be held liable for the acts of its employee even if there is no finding of fault by the employer, or even if management was not aware of the harassment. In addition, California Government Code Section 12940(k) requires that all employers “take all reasonable steps necessary to prevent discrimination and harassment from occurring.”
What can you do to reduce risk of sexual harassment claims?
1. Distribute DFEH Pamphlet
First, every employer must provide each of their employees with the DFEH pamphlet “Sexual Harassment is Forbidden by Law,” available for free download in English and Spanish.
2. Post DFEH Poster
Second, employers must help ensure a workplace free from sexual harassment by posting in the workplace the most recent poster made available by the Department of Fair Employment and Housing.
3. Sexual Harassment Training
Third, California companies with 50 or more employees are required by law to provide two hours of sexual harassment prevention training to all supervisors within six months of hire or promotion, and every two years thereafter. However, as a best practice, it is recommend that all employees of receive sexual harassment training as a way to minimize potential incidents among employees of all ranks, regardless of the size of the company.
4. Develop a Policy for Bringing and Review of Complaints
Fourth, the employer should develop a clear procedure for the bringing of complaints by victims of sexual harassment that includes immediate review and response by management.
5. Seek Professional Counsel
Finally, it is essential that employees are well-informed of the serious consequences that result when sexual harassment laws are violated. If you have any questions about how to effectively educate your employees about sexual harassment, or would like to audit your business policies, employment documents, or Employee Handbook, speak with CEA or a licensed California attorney.
—Jennifer A. Grady, Esq.
Founder, The Grady Firm, PC,