1. preventing SEXUAL HARASSMENT understanding the law Nelson Chan| Associate Chief Counsel California Department of Fair Employment & Housing www.dfeh.ca.gov

2. IS SEXUAL HARASSMENT STILL A PROBLEM?  Total employment discrimination complaints filed with the DFEH for 2011: 18,012 (100%)  Number of those which were sexual harassment complaints: 3,713 (20.6%) 2

3. SEXUAL HARASSMENT CLAIMS ARE COSTLY  Recent jury verdicts and settlements demonstrate the risk for employers Chopourian v. Mercy General Hospital, 2012: $168 million. Johnson v. ICEF Public Schools, 2012: $1.4 million settlement. DFEH v. Esquire Cocktail Lounge, 2010: $150,000 settlement. Weeks v. Baker & McKenzie, 1994. $7.1 million jury verdict.  Lost wages.  Lost staff time to investigate and resolve claims.  Attorneys fees and defense costs.  Lowered staff morale. 3

4. AN OUNCE OF PREVENTION  The Fair Employment and Housing Act (FEHA) requires: Two hours of sexual harassment prevention training for all supervisory employees within six months of assignment. Every two years thereafter. 4

5. every worker has a right to be FREE FROM HARASSMENT 5

6. EDUCATIONAL OBJECTIVES  Recognize sexual harassment.  Understand rights and responsibilities.  Know legal remedies. 6

7. WHAT IS SEXUAL HARASSMENT?  Unwanted visual, verbal or physical conduct that is sexual in nature;  Requests for sexual favors; or  Exposure to offensive conduct. 7

8. WHO IS PROTECTED FROM SEXUAL HARASSMENT?  Employees.  Independent contractors.  Job applicants. 8

9. WHO IS LIABLE? Strict Liability Employers are strictly liable for harassment committed by a supervisor or agent. Negligence Employers are liable for harassment committed by a non-supervisor if they:  Knew or should have known of the harassing conduct; and  Failed to take immediate and appropriate corrective action. 9

10. HYPOTHETICAL #1  Jane, a surgical nurse working for Big Hospital. One doctor tells her that that she is a “stupid chick,” and did surgery “like a girl” and continues making demeaning comments to Jane often referring to her gender. Another surgeon greets Jane and other employees by announcing “I’m horny” and makes crude, sexually oriented comments during surgeries. Jane complains repeatedly to the HR Department but nothing is done.  Big Hospital terminates Jane for attendance and performance issues which she disputes. Jane asserts that she was fired for filing complaints of sexual harassment and reporting other irregularities.  After Jane finds new employment Big Hospital revokes her hospital privileges, effectively preventing her from finding work in her field. 1.Did sexual harassment occur? 2.Was the Big Hospital liable for the acts of the individual doctors? 3.Are the doctors individually liable? 10

11. PERSONAL LIABILITY  Personal liability where an employment relationship exists between harasser and victim.  Regardless of whether harasser was a supervisor or manager.  Peer to peer harassment can lead to liability for both the employer and the harasser. 11

12. HYPOTHETICAL #2  Many male police officers were unhappy when Polly Police Officer joined the force.  They spread untrue rumors about her abilities, singled her out for graveyard shifts, filed unsubstantiated complaints about her work, and spread rumors that she had slept with her superiors to receive desirable work assignments.  When Polly complained, her supervisor acknowledged the double standard for male and female officers, but told Polly to live with it. 1.Did any sexual harassment occur? 2.Why or why not? 3.If yes, who is liable? 12

13. TYPES OF SEXUAL HARASSMENT  Hostile Work Environment.  Quid Pro Quo.  Adverse employment action is not necessary to establish a sexual harassment claim. Exposing the victim to the offensive conduct is what triggers liability. 13

14. HOSTILE WORK ENVIRONMENT 1.Harassment directed at complaining party; or 2.Complaining party witnessed harassment of others. 14

15. HARASSMENT BECAUSE OF SEX The harassing behavior was because of the complainant’s sex or gender.  Includes same-sex harassment.  Does not have to be sexual in nature/SB 292 (Corbett) addressing the ruling in Kelley v. Conco Companies (2011) 196 Cal.App.4th 191.  Compare: Equal opportunity harasser. Orlando v. Alarm One. $1.7 million jury verdict set aside due to improper instructions. Was plaintiff spanked because she was a woman? 15

16. SEVERE OR PERVASIVE Harassing conduct is so severe or pervasive that it alters the work environment. 16 Severe Pervasive

17. SUBJECTIVELY SEVERE OR PERVASIVE  The victim herself must perceive the work environment as hostile or abusive. 17

18. OBJECTIVELY SEVERE OR PERVASIVE  A reasonable person would find the environment to be hostile or abusive. Consider age, gender, work experience, education, and life experiences. 18

19. HOW CAN SEXUAL HARASSMENT OCCUR WITHOUT ANY TOUCHING OR SPEAKING?  Leering.  Staring.  Making sexual gestures.  Displaying sexually explicit objects, pictures, cartoons, graffiti, or posters.  Sending graphic emails, text messages, or “jokes.” 19

20. HYPOTHETICAL #3  Peter is a famous attorney and his firm’s “rain maker.” Peter fancies himself irresistible to women. He regularly expresses his opinion about the wardrobe of female employees, and visitors. He tells Debbie, a temporary worker, on her first day that she should not wear a particular dress because “it does not flatter your figure.”  The law firm has a ”zero tolerance policy” with respect to sexual harassment and warns that “Big Law Firm will not tolerate any behavior that might be construed to be sexual in nature, even if the behavior does not meet the legal definition of sexual harassment.” 1.Did sexual harassment occur? 2.Did the Peter engage in any other conduct that would subject him to discipline? 20

21. THIS IS SEXUAL HARASSMENT SEXUAL ADVANCES · PROPOSITIONS · INNUENDOS 21

22. WHAT IS VERBAL HARASSMENT?  Foul or obscene language.  Derogatory comments.  Explicit discussions about sexual activities.  Comments about other people’s physical attributes. 22

23. UNWANTED TOUCHING IS SEXUAL HARASSMENT  Kissing.  Hugging.  Grabbing.  Impeding or blocking movement.  Assault. 23

24. HYPOTHETICAL #4  Betty worked at a fast food restaurant. She went out socially with the male night shift supervisor. The supervisor picked her up at a grocery store near the restaurant. They had dinner and went back to his house where there was some sexual activity. She alleges that he raped her.  The next day, she advised the manager of the restaurant of what had happened and quit her job. 1.Did sexual harassment occur? 2.Why or why not? 3.If yes, who is liable? 24

25. HARASSMENT OR FAVORITISM TOWARD OTHERS = HOSTILE WORK ENVIRONMENT  Sexual harassment or favoritism directed toward a third party can cause a hostile environment. 25

26. QUID PRO QUO HARASSMENT  Something for something.  “Quid pro quo harassment occurs when submission to sexual conduct is made a condition of concrete employment benefits.” (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 607.) 26

27. EXAMPLES OF QUID PRO QUO HARASSMENT  An offer of employment benefits in exchange for sexual favors.  Actual or threatened reprisal after rebuffing sexual advances. 27

28. “AN OUNCE OF PREVENTION IS WORTH A POUND OF CURE.” - BENJAMIN FRANKLIN Employers are required to take all reasonable steps to prevent harassment from occurring, such as:  Having a harassment policy.  Training employees on sexual harassment.  (Gov. Code, § 12940, subd. (k).) 28

29. REMEDIES  Lost salary or wages.  Transfer.  Purge of personnel file.  Emotional distress.  Punitive damages.  Court-ordered policy changes and training. 29

30. FEHA vs. TITLE VII FEHA  Strict liability for managers and supervisors.  No affirmative defenses. TITLE VII  Negligence theory only.  Affirmative defense: Employer exercised reasonable care; and, Employee unreasonably failed to take advantage of opportunities to avoid harm. 30

31. FEHA COVERS MORE EMPLOYERS, PLUS INDEPENDENT CONTRACTORS FEHA  All employers covered, even those employing only one person.  Includes independent contractors.  Persons providing services pursuant to a contract. TITLE VII   ≥15 employees. 31

32. HYPOTHETICAL #5  Sally, a social worker, who was temporarily working under contract with the City of Palms Jail in California. Sally complained of sexual harassment by the prison chaplain.  The counselor employed by the City, tells Sally he wants a sexual relationship with her. Sally told him point blank, “no thanks, let’s just be friends.”  The counselor persists, harassing Sally at work and off duty: He appeared at Sally’s apartment in the middle of the night and suggests that she “might like it,” if he raped her.  Sally was consistently clear with the counselor that she was offended by his conduct. When she complained to City officials, they insist that the employment agency remove her from the workplace. 32 As a contractor, can Sally file a complaint under the FEHA about sexual harassment?

33. HOW TO DEAL WITH SEXUAL HARASSMENT? EMPLOYEES  Tell the harasser that the conduct is unwelcome, offensive, and must stop immediately.  Demonstrate that the conduct is unwelcome by walking away, avoiding interaction and using facial expression and body language.  Report behavior to immediate supervisor, human resources officer, or appropriate member of management. 33

34. HOW TO DEAL WITH SEXUAL HARASSMENT? EMPLOYERS Implement an effective anti-harassment policy.  Which includes an effective complaint procedure. Keep employees fully informed of their rights.  DFEH poster.  DFEH information sheet. 34

35. 35 www.dfeh.ca.gov

36. WHAT DO I DO WHEN SOMEONE COMPLAINS? ADVICE FOR EMPLOYERS 1.Listen actively. Allow complainant to tell his/her story. 2.Keep parties separate. Never force a confrontation between complaining employee and alleged harasser. 3.Be candid with the parties and witnesses: Complaints and interviews not confidential. 36

37. EMPLOYER’S DUTY TO INVESTIGATE 1.Conduct an immediate inquiry. 2.Encourage a written complaint. 3.Protect complaining party from retaliation. 37

38. WHAT IS AN EFFECTIVE INVESTIGATION? Follow your own procedures. Engage a qualified, impartial investigator. Remain objective. Investigate and obtain details.  Frequency.  Duration.  Nature of incidents. Explore relationship between the parties. 38

39. HOW TO INTERVIEW WITNESSES Admonish witnesses not to interfere with investigation. Make credibility determinations based on:  Facts and documents gathered;  Demeanor; and,  Motivations 39

40. OUTCOME OF INVESTIGATION Draw a conclusion.  Is the complaint meritorious? Take timely, appropriate corrective action. Provide remedy to complaining employee. 40

41. WHAT IF I STILL HAVE QUESTIONS? CONTACT THE DFEH! 41 contact.center@dfeh.ca.gov (800) 884-1684

42. THE END www.dfeh.ca.gov contact.center@dfeh.ca.gov (800) 884-1684 Videophone (916) 226-5285 42