Employers Must Implement Workplace Policies and Procedures to Prevent Sexual Harassment in the Workplace

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Created on Monday, 05 March 2012 06:10

Last updated on Monday, 05 March 2012 07:00

Published on Monday, 05 March 2012 06:10

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The recent $168 million dollar sexual harassment verdict highlights how important it is for employers to ensure that harassment is not occurring in the workplace. The following includes a brief overview of the basics on sexual harassment and a reminder that employers must implement appropriate workplace anti-sexual harassment policies and procedures. Pursuant to the Fair Employment and Housing Act  (FEHA) harassment because of sex includes sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions. The Fair Employment and Housing Commission (FEHC) regulations define sexual harassment as unwanted sexual advances, or visual, verbal or physical conduct of a sexual nature. This definition includes many forms of offensive behavior and includes gender-based harassment of a person of the same sex as the harasser. 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

Visualb 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

EMPLOYER LIABILITY

All employers are prohibited from harassing employees in the workplace. It is important for employers to
understand that if harassment occurs, an employer may be liable even if management was not aware of the harassment. However, an employer might avoid liability if the harasser is a non-management employee, the employer had no knowledge of the harassment, and the employer had implemented an anti-harassment program. Further, if the harasser is a non-management employee, the employer may avoid liability if the employer takes immediate and appropriate corrective action to stop the harassment once the employer learns about it. Employers must recognize they are strictly liable for harassment by their supervisors or agents. The harasser can also be held personally liable for damages. Employers must take all reasonable steps to prevent harassment from occurring. If the employer has fails to take such preventative measures, the employer can be held liable for the harassment. A victim of harassment may be entitled to monetary damages even though no employment opportunity has been denied and there is no actual loss of pay or benefits.

EMPLOYER OBLIGATIONS

All employers have a legal obligation to prevent sexual harassment and must therefore take all reasonable steps to prevent discrimination and harassment from occurring by implementing anti-sexual harassment policies and procedures which include the following:

(1) Post in the workplace an anti-sexual harassment poster made available by the Department of Fair Employment and Housing (DFEH).

(2) Distribute to employees information on sexual harassment. An employer may either distribute a brochure that may be obtained from the DFEH or develop an equivalent anti-harassment policy (distribute as a stand alone policy and or as part of the employee handbook) which must meet the following requirements:  

• The illegality of sexual harassment
• The definition of sexual harassment under state and federal laws
• A description of sexual harassment, utilizing examples
• The internal complaint process of the employer available to the employee
• The legal remedies and complaint process available through the DFEH.
• Directions on how to contact the DFEH.

(3) Advise employees about the protection against retaliation for opposing the practices prohibited by law or for filing a complaint with, or otherwise participating in investigative activities conducted by, the DFEH.

(4) Employers with 50 or more employees must provide at least two hours of classroom or other effective interactive training and education regarding sexual harassment to all supervisory employees, and to all new supervisory employees within six months of assuming a supervisory position. Thereafter, covered employers must provide sexual harassment training and education to each supervisory employee once every two years.

A program to eliminate sexual harassment from the workplace is not only required by law, but it is the most practical way to avoid or limit damages if harassment should occur despite preventative efforts.

COMPLAINT PROCEDURE

An employer should take immediate and appropriate action when he/she knows or should have known that
sexual harassment has occurred. An employer must take effective action to stop any further harassment and to minimize any effects of the harassment. To those ends, the employer's policy should include provisions to:

(1) Fully inform the employee of his/her rights.

(2) Fully and effectively investigate any complaint of sexual harassment. The investigation must be immediate,
thorough, objective and complete. Anyone with information on the matter should be interviewed. A determination must be made and the results communicated to the complainant, to the alleged harasser, and, as appropriate, to all others directly concerned.

(3) If harassment is proven, there must be prompt and effective remedial action.  First, appropriate action must be taken against the harasser and communicated to the complainant. Second, steps must be taken to prevent further harassment. Third, appropriate action must be taken to remedy the complainant's loss, if any.

TRAINING OF ALL INDIVIDUALS IN THE WORKPLACE

All employees must receive from their employers a copy of the DFEH pamphlet "Sexual Harassment is Forbidden by Law" (DFEH-185) or an equivalent document. All employees should be made aware of the seriousness of violations of the sexual harassment policy. Supervisory personnel should be educated about their specific responsibilities. Rank and file employees should be cautioned against using peer pressure to discourage harassment victims from using the internal grievance procedure. As indicated above, employers with 50 or more employees must provide at least two hours of classroom or other effective interactive training and education regarding sexual harassment to all supervisory employees and to all new supervisory employees within six months of assuming a supervisory position. Thereafter, covered employers must provide sexual harassment training and education to each supervisory employee once
every two years.

TYPICAL SEXUAL HARASSMENT CASES

The three most common types of sexual harassment complaints filed with the DFEH are:

(1) An  employee is fired or denied a job or an employment benefit because he/she  refused to grant sexual favors or because he/she complained about  harassment. Retaliation for complaining about harassment is illegal, even  if it cannot be demonstrated that the harassment actually occurred. 

(2) An employee quits because he/she can no longer tolerate an offensive work environment, referred to as a "constructive discharge" harassment case. If it is proven that a reasonable person, under like conditions, would resign to escape the harassment, the employer may be held responsible for the resignation as if the employee had been discharged.

(3) An employee is exposed to an offensive work environment. Exposure to various  kinds of behavior or to unwanted sexual advances alone may constitute harassment.

The above information was obtained from the DEFH’s website at www.dfeh.ca.gov.

A Stunning $168 Million Dollar Verdict in Sexual Harassment Case

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Created on Friday, 02 March 2012 18:03

Last updated on Saturday, 03 March 2012 12:27

Published on Friday, 02 March 2012 18:03

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A federal jury in Sacramento, California, has returned a stunning $168 million dollar verdict for alleged sexual harassment. It may be the largest verdict for a single plaintiff claiming sexual harassment. The case involves Ani Chopourian who worked at Mercy General Hospital as a surgical assistant. She alleged that she made multiple complaints of sexual harassment against surgeons that she worked with and of substandard patient care, but the hospital allegedly ignored her complaints. As reported by the Los Angeles Times, “there were at least 18, she recalled, many having to do with the bullying surgeon who once stabbed her with a needle and broke the ribs of an anesthetized heart patient in a fit of rage. Another surgeon, she said, would greet her each morning with "I'm horny" and slap her bottom. Yet another called her "stupid chick" in the operating room and made disparaging remarks about her Armenian heritage, asking if she had joined Al Qaeda.” However, managers from Mercy General Hospital testified that it was Chopourian who was guilty of professional misconduct, which was why they terminated her and tried to deny her unemployment benefits.

Chopourian worked at four other hospitals in New England and California before joining the prestigious cardiovascular surgical team at Mercy General Hospital in August 2006. Two years later, she was terminated, allegedly after filing one last complaint about patient care and the doctors' offensive behavior. The record judgment — $125 million in punitive damages and $42.7 million for lost wages and mental anguish — could be reduced on appeal or via a post-trial settlement. Chopourian commented that "Cardiac surgery brings in the most money for any hospital facility, which is why they are willing to turn a blind eye to illegal and inappropriate behavior…We had four very strong witnesses who were frightened to speak out but did so because they felt it was important that someone put a stop to this." Chopourian’s attorney observed that the jury was “just shocked by the whole workplace environment” which was revealed through the plaintiff’s case that included testimony from numerous witnesses who “depicted a culture of vulgarity and arrogance they said humiliated female employees and put patients at risk.” Mercy General Hospital President Denny Powell stated that they would appeal the decision, and also commented that, “We are disappointed by the jury's decision…We are committed to providing a safe working environment, free from sexual harassment and inappropriate behavior. We stand by the actions we took in ending our relationship with this former employee and we will appeal this decision.” Read More

Employers Must Prevent Harassment of Employees by Customers

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Created on Friday, 02 March 2012 00:44

Last updated on Friday, 02 March 2012 00:46

Published on Friday, 02 March 2012 00:44

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A recent lawsuit filed by the Equal Employment Opportunity Commission (EEOC) highlights the fact that employers are obligated to prevent the harassment of employees by anyone in the workplace including customers, clients and outside vendors. The case involves a Hurricane Grill and Wings restaurant franchise in Royal Palm Beach, Florida. The restaurant will pay $200,000 to settle a class sexual harassment lawsuit filed by the EEOC, in which the agency charged that the company violated federal law when it allegedly allowed a class of female servers to be sexually harassed by a customer, a Palm Beach County sheriff’s deputy. In addition, according to the EEOC, the company terminated a female server after management learned she had hired a private attorney to assist her in filing an EEOC complaint. The EEOC’s lawsuit alleged that servers were “frequently grabbed on their breasts and buttocks and humiliated by sexual innuendo, as well as direct invitations to join the harasser and his wife in ménage a trois.” As part of the settlement, the company has agreed to amend and redistribute its sexual harassment policy; offer training to all employees, including management; post a notice regarding its continued effort to ensure that the Royal Palm Beach location is free of sexual harassment and its intent not to retaliate further; monitoring and reporting to the EEOC; and a written request for the offending patron to stay away from the facility. The EEOC’s Miami District Director Malcolm Medley commented that, “The Commission remains poised to enforce Title VII and it will actively pursue flagrant violations such as this one. Employees should feel safe at work and employers must protect their employees from a sexually hostile work environment.” Read More.

Workers’ Compensation May Not be Exclusive Remedy for Work Related Injury Caused by Sexual Harassment

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Created on Monday, 06 February 2012 20:02

Last updated on Tuesday, 14 February 2012 04:31

Published on Monday, 06 February 2012 20:02

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The Court of Appeal, Fifth Appellate District, has held in an unpublished opinion that a cause of action for work related intentional infliction of emotional distress, in a case where discrimination and harassment by an employer were involved, may not be barred by the exclusive remedy provision of California workers’ compensation law. The case was appealed after the trial court granted the employer’s motion for a summary judgment on all claims, including sexual harassment, retaliation and intentional infliction of emotional distress. The appellate court found that there were triable issues of fact in regards to these claims and reversed the trial court’s decision. The appellate court’s reasoning was that in terms of the exclusivity of the workers’ compensation remedy, harassment and discrimination by an employer are acts that are outside the normal part of the employment environment.

The court noted, however, that in order for such discriminatory and harassing acts to move beyond those of a normal work environment, and thereby outside of the workers’ compensation arena, the conduct must consist of extreme and outrageous behavior beyond all bounds of decency. Referring to existing case law, the court emphasized that outrageous behavior could be found when an individual:  (1) abuses a relation or position which gives the individual power to damage another person’s interest; (2) knows the other person is susceptible to injuries through mental distress; or (3) acts intentionally or unreasonably with the recognition that the acts are likely to result in illness through mental distress. The court stated that if sexual harassment and retaliation claims under Fair Employment and Housing Act (FEHA) are found compensable, then a concurrent claim for intentional infliction of emotional distress , based upon the same facts, will meet the above criteria and can be tried with a civil court, instead of the workers’ compensation appeals board. Thus, employers need to be aware that although workers’ compensation laws and insurance will preclude most work injuries or illnesses at work from being brought before the civil courts, if the facts of the workers’ compensation claim can also support a claim under the FEHA, the employee may be able to seek the greater remedies available in a civil court. Read More.