Reducing your exposure to sexual harassment claims.

While sex discrimination in employment has been unlawful for decades, the recent proliferation of sexual harassment lawsuits suggests that employers should pay particular attention to reducing their exposure to claims of this sort.

There are two types of actionable sexual harassment, quid pro quo harassment and hostile work environment. When employment benefits or terms are conditioned on the granting of sexual favors, or an employee is disciplined for not granting sexual favors, quid pro quo harassment occurs.

A plaintiff can prove a case of hostile work environment sexual harassment by demonstrating: (1) that he or she was subjected to unwelcome conduct that was either of a sexual nature or was directed at the employee because of his or her sex; and (2) that the conduct was sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive work environment. Examples of conduct that can create a hostile work environment include "girlie" posters in the workplace, catcalls, inappropriate sexual jokes or other offensive comments, touching, winking, leering, highly personal questions, unwanted telephone calls, continued requests for dates, derogatory comments and epithets, sending suggestive or obscene letters, impeding or blocking movements, patting, and pinching.

Conduct is "unwelcome" when the employee does not solicit or invite it, even if it is "voluntary," in the sense that the employee submits to it in order to preserve his or her job. The employee need not show severe psychological injury or tangible effects on his or her job performance to prevail on a sexual harassment claim, and harassment by an individual of the same sex as the victim is also actionable in California.

When is an employer liable?

A company is liable for harassment by an employee's co-worker only if a supervisor or management knew or should have known of the conduct. Once the employer knows of the conduct, it is liable if the problem is not remedied. In contrast, an employer is strictly liable for compensatory damages for harassment by a supervisor even if the company was unaware of the conduct. The company is also liable for punitive damages if the harasser is a managerial employee (i.e., has discretion in making decisions that can affect corporate policy) or if management knew of the harasser's conduct and essentially ratified it by failing to take appropriate steps to ensure that it stopped.

What can an employer do to prevent harassment from occurring in the first place?

Most California employers are required by law to post the amended discrimination poster issued by the California Department of Fair Employment and Housing ("DFEH"), which includes references to sexual harassment, and to distribute to all employees a DFEH pamphlet regarding sexual harassment (or their own equivalent information sheet). The pamphlet contains a great deal of information that may sensitize employees to sexual harassment issues and educate them as to the kinds of conduct that will not be tolerated in the workplace. In addition, employers who fail to post the poster or to distribute the information sheet risk their failure to do so being used as evidence against them in a sexual harassment case.

Employers should also be sure to have a written policy which includes the following: (1) a strong statement that the company will not tolerate sexual harassment, that the policy against sexual harassment will be vigorously enforced and that the policy applies to all employees (men and women alike); (2) a description or examples of some of the more subtle forms of harassment; (3) a detailed grievance procedure that a harassed employee should follow; and (4) a description of remedial actions that will be taken, i.e., warning that sexual harassment may result in termination.

Finally, due to the seriousness of the problem and the recent proliferation of sexual harassment claims, employers are also well advised to train all employees, and especially supervisors and higher-level management, regarding sexual harassment. This education may be included in any orientation the employer gives to new employees and in special workshops or training programs. If the employer becomes aware of even the possibility of a general sexual harassment problem in the workplace, training sessions are a must.

What should a company do to minimize liability if harassment occurs?

Employers should not underestimate their potential exposure in this era where plaintiffs in sexual harassment cases are receiving awards of over $3 million. Steps for reducing exposure include having an adequate grievance procedure in place, investigating all claims thoroughly and taking appropriate corrective action.

Grievance procedures. All grievance procedures should include the following: (1) a special procedure for sexual harassment complaints, separate from other standard procedures; (2) at least two avenues for registering a complaint (an employee should not be forced to complain to only one person because that person may be the harasser), preferably allowing the employee a choice of reporting the complaint to a man or a woman; (3) assurance that there will be no repercussions for making a complaint in good faith; and (4) responsible individuals to receive the complaints, i.e., people who will be able to handle the delicate balance between conducting an investigation and maintaining confidentiality.

Investigations. All complaints should be followed immediately with an investigation. Even if the complaining employee requests that the employer refrain from acting and keep the matter strictly confidential, the employer is on notice of harassment as soon as the complaint is made. Because an employer may be held liable for the harassment once aware of it, management should ensure that the problem is cured even when confidentiality is requested.

The investigation should be tailored to discovering exactly what occurred or what is occurring, how often it occurs, when it began, what the victim did in response, whether there were any witnesses and how the victim thinks the problem should be remedied. The complaining employee and the alleged harasser should be interviewed separately, as should all potential witnesses identified by them and any other people who may have knowledge of the facts. These employees should be advised that there will be no retaliation against them for telling the truth. The investigation must be well-documented. These documents must be kept confidential, however, and stored in a location to which there is limited access. The individuals conducting the investigation must be mindful of the fact that a wrongful accusation of harassment can be very damaging to a person's reputation, to the morale of the accused harasser and to the morale of the entire workplace. The investigation therefore needs to be handled as carefully and confidentially as possible.

Corrective action. Once the investigation is completed, the company should gather together all the evidence and decide whether the sexual harassment complaint is valid. It may be useful to meet separately with the complaining employee, as well as the alleged harasser, to discuss the findings of the investigation and the disciplinary action, if any, to be taken.

Those in charge of remedying the situation must keep in mind that it is unlawful to punish a victim of sexual harassment because of his or her complaint. For instance, a sexual harassment victim cannot be relocated to a less desirable location or involuntarily transferred to another position in order to remedy the situation.

Disciplinary action must be "assessed proportionately to the seriousness of the offense" and must be "reasonably calculated to end the harassment." Simply warning the offender is insufficient if the harassment does not stop immediately; to protect itself, an employer needs to discipline sexual harassers seriously. Probation, suspension and/or discharge are measures that may need to be taken once an investigation, followed by a warning, reveals that sexual harassment has occurred and cannot be remedied by less severe disciplinary measures. Management should also follow up to ensure that the harassment has ended.

However, while employers must impose disciplinary measures severe enough that they are likely to end the harassment, they must not ignore the rights of the alleged harasser by imposing the most severe forms of discipline in cases where the harassment may be deterred by less severe disciplinary measures. This is particularly true in civil service employment and in workplaces governed by a collective bargaining agreement.

Robin D. Wiener is an officer with the law firm of Tuttle & Taylor in Los Angeles and Co-Chair of the firm's Labor & Employment Law Practice Group. She represents employers in all aspects of employment law. Ms. Wiener is the author of a number of legal publications and has spoken before groups of employers and attorneys on various employment law topics.