Sexual Harassment in California and Nationwide

Sexual Harassment is an ugly thing. In California last August Governor Brown signed Senate Bill 292 an amendment to the Fair Employment and Housing Act which allows an employee claiming sexual harassment to prevail in a case without the necessity of showing that the conduct claimed motivated by the harasser’s sexual desire.

Effective as of January 1, 2014, the bill simple adds a sentence to the FEHA, noting that “sexually harassing conduct need not be motivated by sexual desire.” In short, should an employee be subject to sexual comments or actions, he or she does not need to provide the burden of proof that this conduct was caused by the harasser’s so called “sexual desire.”

Employers are legally responsible to create a workplace that’s free of sexual harassment. It makes sense not just in legal terms, but as good business. Sexual harassment causes low productivity, low morale, and stress.

Along with the federal law contained in Title VII of the Civil Rights Act prohibiting sexual harassment, each state also has its own anti-sexual harassment law.

Do you know what sexual harassment entails? Have you trained your staff to prevent such misconduct, and encourage reporting of any unwelcome sexual advance should a situation occur?

Remember, sexual harassment refers to any unwelcome sexual advance or any conduct on the job that sets up a working environment that is intimidating or hostile for the employee. Any sexual conduct of any kind that makes an employee feel uncomfortable has the potential to be defined as sexual harassment, whether the misconduct is verbal or physical.

In short, whether it’s sexually explicit jokes, demeaning comments, an explicit email, or unwelcome touch of any kind, that’s sexual harassment. The harasser may be the victim's manager or coworker. And, you should know that an employer could be liable for harassment by a non-employee, such as a customer or vendor, if that harassment is tolerated in the workplace.

The point is, you need to be sure that strategies for the prevention of sexual harassment are firmly in place.

Make sure you have a policy to prevent such harassment, one that states it will not be tolerated, it will be punished, that you’ll fully investigate any complaint received, and that you will not tolerate retaliation against someone who files a complaint. You should also lay out a clearly understood procedure for filing sexual harassment complaints.

And of course, your employees must be trained. Training should let employees know exactly what sexual harassment is comprised of, explain that each and every employee has a right to a harassment-free environment, explain your policies and encourage employees to use the tools in place to prevent harassment and to file complaints should harassment occur.

In California, the law requires that any employers with at a minimum of fifty employees provide sexual harassment training every two years. Of course, even if your state doesn’t require you to do such training, it’s a good idea to do it. Such training will protect you legally should harassment occur, it will also actively prevent the occurrence in the first place. Knowledge of the laws keeps communication open.