Protecting Your Company Against Sexual Harassment Claims: Recent Developments and Best Practices
May 26, 2011
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As large workplace harassment verdicts and settlements continue to make the headlines, and the definition of sexual harassment continues to evolve in the courts, employers need to remain as vigilant as ever about preventing sexual harassment. On May 26, 2011, Miller Law Group presented a webinar exploring the latest trends and developments in federal and California sexual harassment law, including an overview of recent court decisions, an examination of the rise in harassment complaints filed by men, and best practices for preventing and addressing workplace harassment. The following are answers to frequently asked questions by webinar attendees.
Q: ARE CALIFORNIA EMPLOYERS REQUIRED TO GIVE NEW HIRES A SEXUAL HARASSMENT INFORMATION SHEET FROM THE DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING, OR IS THAT JUST A RECOMMENDED ACTION?
A: The California Department of Fair Employment and Housing (DFEH) requires employers to provide new hires with the agency’s sexual harassment information sheet (DFEH 185), or an information sheet prepared by the employer that addresses the following topics: (1) the illegality of sexual harassment; (2) the definition of sexual harassment under state and federal law; (3) a description of sexual harassment, with examples; (4) the employer’s internal complaint process; (5) the legal remedies and complaint process available through the DFEH and Fair Employment and Housing Commission (FEHC); (6) directions for contacting the DFEH and FEHC; and (7) the protections against retaliation.
Although not specifically required, it is a good business practice to regularly re-distribute the notice to all employees, keeping in mind that the information sheet is not a replacement for an employer’s own comprehensive anti-harassment policy and complaint procedure.
Q: IF WE PROVIDE AN E-LEARNING COURSE TO OUR MANAGERS TO COMPLY WITH CALIFORNIA’S MANDATORY HARASSMENT TRAINING LAW, DOES THE LAW REQUIRE THAT THERE BE SOMEONE WHO CAN ANSWER QUESTIONS IMMEDIATELY?
A: California’s A.B. 1825, the law mandating sexual harassment training for supervisors, authorizes employers to present the training in an “e-learning” format. “E-learning” is individualized, interactive, computer-based training created by a trainer and an instructional designer. The training must provide a hyperlink or instructions on how participants can ask questions of a live trainer, and the trainer must answer within a reasonable time but no more than two business days.
Q: I HAVE HEARD THAT, UNDER A.B. 1825, 2011 IS A TRAINING YEAR. IS THAT TRUE FOR ALL EMPLOYERS?
A: Whether this is a training year under A.B. 1825 depends on how the employer tracks supervisor training and when training was last provided. For companies that use “training year” tracking, 2011 is a training year if the last training occurred in 2009. In particular, this method requires the employer to designate a "training year" during which supervisors are trained. Then, the company must re-train these supervisors by the close of the next "training year," two years later. Keep in mind that newly hired or promoted supervisors generally must be trained within six months of the hire or promotion, regardless of whether it is a training year for the employer.
Q: WE HAVE SUPERVISORS LOCATED OUTSIDE OF CALIFORNIA THAT SUPERVISE SOME EMPLOYEES IN OUR CALIFORNIA OFFICES. ARE WE REQUIRED TO PROVIDE A.B. 1825 TRAINING TO THOSE SUPERVISORS?
A: Employers covered by A.B. 1825 (that is, all employers engaged in business or enterprise in California that have 50 or more employees or contractors anywhere) are only required to train supervisors who are located in California. However, the best practice is to provide A.B. 1825-compliant training to all supervisors, regardless of location, who supervise employees in California.
Q: WHAT ARE A SUPERVISOR’S LEGAL OBLIGATIONS WHEN AN EMPLOYEE COMPLAINS ABOUT HARASSMENT BUT TELLS THE SUPERVISOR SHE DOES NOT WANT THE COMPLAINT REPORTED TO HUMAN RESOURCES OR HIGHER-LEVEL MANAGEMENT?
A: When an employee complains that they (or a co-worker) may be a victim of harassment, human resources or the supervisor receiving the complaint cannot -- and should not -- promise absolute confidentiality. That’s because employers have a legal duty to investigate any potential harassment, and there may be a need to disclose the individual’s name to the accused and to witnesses in order to conduct a full and fair investigation. However, it is important to maintain the highest level of confidentiality possible. When faced with a request for confidentiality, the supervisor should explain that the company may need to investigate and cannot promise absolute confidentiality, but that the company will endeavor to maintain confidentiality to the extent possible and conduct the investigation discreetly.
Q: HOW CAN WE DETERMINE WHEN HORSEPLAY BETWEEN MALE CO-WORKERS IN THE OFFICE BECOMES ILLEGAL MALE-ON-MALE SEXUAL HARASSMENT?
A: The EEOC reports that sexual harassment claims filed by men are on the rise. And, the majority of these charges involve same-sex harassment, whether by way of unwanted sexual advances or sexual conduct inflicted on the victim to humiliate or haze him. In this latter situation, the line between mere horseplay and unlawful harassment is not always clear. The U.S. Supreme Court addressed this issue over a decade ago in Oncale v. Sundowner Offshore Services, Inc. (1998) 523 U.S. 75. The Court found that while ordinary workplace horseplay may not constitute harassment, when one employee’s behavior toward another creates an objectively hostile or abusive work environment, the behavior is illegal, regardless of the gender of the victim or perpetrator. Because it can be difficult to ascertain when the line between legal and illegal conduct is crossed, the best practice is to discourage workplace horseplay or similar behavior, and to take disciplinary action against employees who engage in such conduct, regardless of whether it rises to the level of illegal sexual harassment.
Miller Law Group exclusively represents business in all aspects of California employment law, specializing in litigation, risk management, wage and hour class actions, ERISA litigation, and appellate law. If you have questions about your workplace obligations, please contact Michele Ballard Miller (mbm@millerlawgroup.com) or Carolyn Rashby (cr@millerlawgroup.com), or call 415-464-4300.
This webinar and Question and Answer Summary are presented by Miller Law Group to review recent developments in employment law. This material is designed to provide informative and current information as of the date of the webinar and should not be considered legal advice.
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