What is sexual harassment?
Sexual harassment is defined as “unwanted sexual advances or visual, verbal or physical conduct of a sexual nature.” Employers must provide a work environment free from sexual harassment.
What if I Didn’t Complaint About the Sexual Harassment?
Employers have a legal duty to prevent sexual harassment, and there is no requirement that employees complain about it. Employers have a duty to “take all reasonable steps necessary to prevent discrimination and harassment from occurring” (Cal Government Code Sec. 12940(k)), regardless of whether the employee complained. Any employer who fails to take these steps violates California law.
What if the harasser isn’t an employee?
California employers are responsible for preventing sexual harassment, even where the harasser is not an employee. California Government Code §12940(j) prohibits an employer from sexually harassing an employee on the basis of gender, and the legislature amended this section to make employers responsible for acts of non-employees. That section states, in relevant part:
An employer may also be responsible for the acts of non-employees, with respect to sexual harassment of employees, applicants, unpaid interns or volunteers, or persons providing services pursuant to a contract in the workplace, if the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action.
Once an employer is notified of sexual harassment, it must take adequate remedial measures.
The measures need to include immediate corrective action that is reasonably calculated to (1) end the current harassment and (2) to deter future harassment. The employer’s obligation to take prompt corrective action requires (1) that temporary steps be taken to deal with the situation while the employer determines whether the complaint is justified and (2) that permanent remedial steps be implemented by the employer to prevent future harassment once the investigation is completed. See Bradley v. Department of Corrections & Rehabilitation (2008) 158 Cal. App. 4th 1612, 1630.
The employer’s responsibility under California Government Code §12940(j) have been found to extend to claims where the employer had as little as one hour’s notice. M.F. v. Pacific Pearl Hotel Management LLC (2017) 16 Cal. App. 5th 693.
If your employer did not take reasonable steps to prevent sexual harassment, we may be able to help. Please contact us for a free consultation.