Scandal highlights need to review sexual harassment policies

In the wake of the sexual harassment allegations against San Diego Mayor Bob Filner, and call by the Democratic County Committee for him to resign, Los Angeles-area employers - and employers throughout the state, for that matter - should take time to evaluate their own behaviors, policies prohibiting sexual harassment, procedures for reporting allegations, and sexual-harassment-prevention trainings.

Los Angeles County has nearly 10 million residents, making it the most populous county in the U.S. The second largest county, Cook County, Ill., has approximately 5.2 million residents. Nearly 4 million Los Angeles County residents are employed by employers located within the county. This makes for an astounding number of potential harassment claims.

Los Angeles County employers, large and small, public and private, have recently faced numerous sexual harassment claims. In the first half of 2013, a major entertainment company faced a claim for retaliation alleging the company attempted to cover up sexual harassment; the city of Los Angeles paid out a $1.25 million settlement to an LAPD officer and a retired officer, both lesbians, claiming repeated sexual harassment; a lawsuit was filed against a prominent Los Angeles yogi by a former student; and after a male cook working for California's Department of Corrections and Rehabilitation (CDCR) complained that he was sexually harassed by a female coworker, the Equal Employment Opportunity Commission's Los Angeles office investigated the claim, and the U.S. Department of Justice filed a sexual discrimination lawsuit against the CDCR. This is just a small sampling of Los Angeles based claims - many other local employers have faced allegations of sexual harassment.

Sexual harassment allegations can lead to substantial expenditure of company funds, including for attorney fees, large settlements and damage awards. Losses to Los Angeles businesses also include time-consuming litigation, depleted employee morale, and loss of good will - not to mention the incalculable emotional and physical toll on employees and victims.

Sexual harassment is illegal under federal and state law, and employers may be held liable for sexual harassment committed by their employees. Under Title VII of the Civil Rights Act of 1964, only employers with 15 or more employees may be held liable for sexual harassment claims. But under California's Fair Employment and Housing Act (FEHA), employers with one or more employees may be held liable for sexual harassment claims.

Under federal law, employers may be vicariously liable for sexual harassment committed by their "supervisors." Additionally, employers may be liable for employees' unlawful harassment if the employer was negligent with respect to the offensive behavior. Under the FEHA, employers are strictly liable for sexual harassment committed by their supervisors; it is immaterial whether an employer was aware of the harassment, should have been aware, or was negligent. California employers may also be liable for sexual harassment committed by nonsupervisory employees where the employer "knows or should have known of the conduct and fails to take immediate and appropriate corrective action."

There are two types of sexual harassment: quid pro quo sexual harassment (i.e., conditioning employment decisions on sexual favors) and hostile environment sexual harassment (e.g., creating an offensive working environment by staring at someone, making sexual comments and jokes, or physically touching or blocking a person in an intimidating manner). As such, sexual harassment may be verbal, physical or visual.

Under the FEHA, sexual harassment is much broader than some employers may suspect. For instance, California's definition of "supervisor" includes anyone having authority "to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend such action, if, in connection with the foregoing, the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment." Additionally, under California common law, employers are strictly liable for employees authorized to interview and hire applicants that sexually harass job applicants.

Instituting strong policies and procedures against sexual harassment cannot guarantee that an employer will not face allegations of sexual harassment or defending a lawsuit, but it may assist in preventing allegations, and it will certainly help in defending against allegations.

California employers are required to "take all reasonable steps to prevent harassment from occurring." The policies and procedures that employers take to prevent sexual harassment, as well as the procedures implemented after allegations are lodged, may affect whether employers are liable and the extent of legal liability, including punitive damages.

Employers should consider implementing policies that prohibit harassment and provide complaint procedures. The Equal Employment Opportunity Commission has, through its Enforcement Guidance, provided basic, some might say vague, guidelines of what employers should include in such policies:

A clear explanation of prohibited conduct;

Assurance that employees who make complaints of harassment or provide information related to such complaints will be protected against retaliation;

A clearly described complaint process that provides accessible avenues of complaint;

Assurance that the employer will protect the confidentiality of harassment complaints to the extent possible;

A complaint process that provides a prompt, thorough, and impartial investigation; and

Assurance that the employer will take immediate and appropriate corrective action when it determines that harassment has occurred.

Under the FEHA, all California employers must also display a poster on the illegality of sexual harassment in the workplace (federal law also requires this) and distribute an information sheet on sexual harassment to all employees. Exemplar posters and information sheets can be obtained from the Department of Fair Employment and Housing.

Additionally, large California employers - those with 50 or more employees - must provide mandatory sexual-harassment-prevention training to certain employees. Specifically, employers must provide all supervisory employees with interactive sexual-harassment-prevention training within six months of hire or promotion, and every two years thereafter.

The allegations against Bob Filner are a reminder of the pervasiveness of sexual harassment. Employers should pay heed. California employers may be vicariously and strictly liable for sexual harassment. And the moral and financial liability can be enormous.