Forming Discipline Policies

Preventing Sexual Harassment in the Workplace

Forming discipline policies help employers to avoid conflict that stems from sexual harassment in the workplace, and help them to defend against potential lawsuits. In 2004,  Governor Arnold Schwarzenegger signed the Assembly Bill 1825, which made sexual harassment prevention training mandatory for companies that employ fifty or more individuals - including those who work outside of California; however, only California-based employees need sexual harassment training. The bill requires that companies train supervisors on preventing sexual harassment every twenty-four months.

With sexual harassment continuing to dominate headlines in the wake of the #MeToo movement, courts constantly aim to provide more protection to employees. Office romances  tend to lead to favoritism between supervisors and subordinates, which leads to hostile workplaces. This type of behavior is considered unlawful harassment because it creates a hostile workplace for all employees involved.

What is Sexual Harassment?

A major challenge in the workplace is the fact that many people find it hard to define. Some people consider only requests for sexual favors or actual sexual advances to be harassment, but the legal definition is much broader. The Equal Employment Opportunity Commission (EEOC) and California Fair Employment and Housing Commission (FEHC) have expanded on the term to include a range of activities in the term 'sexual harassment':

• unwanted advances of a sexual nature;
• verbal sexual propositions and advances;
• offering work-related benefits in exchange for sexual favors;
• verbal abuse of a sexual nature including graphic verbal comments about a person's body; obscene invitations, notes or letters; sexually degrading descriptions of individuals;
• verbal harassment (jokes, slurs, derogatory comments and epithets);
• visual harassment (displaying derogatory posters, drawings, cartoons that objectify women), sexual gestures and leering;
• physical harassment (physical interference with work or movement, inappropriate touching, or assault).

It is important to note that sexual harassment applies to men and women alike and extends to same-sex harassment.

Employer Liability

Federal and state law may hold an employer vicariously liable for the behavior of supervisors in its employ. California law holds employers liable for inappropriate conduct of supervisors who acted within the scope of their employment when engaging in inappropriate conduct, even if the employer has defined discipline policies.

Discipline Policies May Minimize Employers' Risk

Employers can minimize their exposure to sexual harassment lawsuits by creating discipline policies and by showing that:

1. They exercised reasonable care to prevent or alleviate the misconduct.
2. The alleged sexual harassment victim failed to take reasonable advantage of the company's discipline policies.

Ultimately, the employer should prove that it exercised reasonable care in preventing sexual harassment, and exercised reasonable care to prevent further inappropriate conduct when it became aware of the harassment.

For that reason, it is important that companies form discipline policies to prevent all types of discrimination. Such a policy can prove that the company took reasonable care to prevent sexual harassment. A discipline policy should be contained within an employee handbook, and posted in a common room. The policy should include:

1. a description of behaviors considered sexual harassment;
2. a company statement that prohibits sexual misconduct in the strongest terms;
3. a clarification of the complaints procedure, including two or more individuals (one being female) to whom individuals may complain;
4. a description of the company's complaints handling process;
5. an assurance that the employee will be protected against retaliation;
6. an assurance that the company will protect the identity of the individual who complained to the extent practical.
7. a statement that encourages employees to report any inappropriate behavior right away in order for investigations to be conducted;
8. an assurance that the employer will take the appropriate action immediately in order to investigate the situation and to take corrective action if it discovers that harassment has occurred.

Discipline Policy Explained

Employers have act quickly, thoroughly and objectively when it comes to correcting inappropriate behavior. It has to conduct an urgent fact-finding investigation, hear the allegations, take detailed notes, identify everyone who was involved, and identify witnesses. Notes of the investigation must not be kept in the victim's personnel file, but rather in a separate file which is marked confidential.

Some of the factors to be considered when establishing an anti-harassment policy, should include:

• Implementation of appropriate remedies to handle sexual harassment complaints;
• A stricter discipline policy than a mere request for the perpetrator to refrain from inappropriate conduct;
• An action that fully remedies the person's conduct without having an adverse reaction on the victim's employment is deemed appropriate.
• Punishment that helps maintain a workplace that is free from harassment, otherwise the employer may be subjected to an EEOC suit.
• An acknowledgment that that employees who engage in pervasive or particularly severe harassment may be removed from the workplace if their presence would create a hostile working environment.

The DFEH-185 sexual harassment information form may be distributed in the workplace, or employers may produce their own document, which must include:

• a statement about the illegality of sexual harassment;
• federal and state law definitions of sexual harassment;
• examples to describe sexual harassment;
• a breakdown of the company's internal complaints process;
• the complaints process through the DFEH and potential legal remedies;
• contact details for the DFEH;
• information on how the employee will be protected against retaliation for filing the complaint or for aiding an investigation.

In terms of training, the law requires companies to maintain training records for a minimum of two years and must include:

• the type of training received (computer or classroom)
• the company or individual who facilitated the training

The law requires that individuals who facilitate sexual harassment training possess significant expertise. An attorney who has been a member of the California state bar for two or more years and works for a practice that includes employment law may provide the training.

There are three types of sexual harassment defined by the law, namely:

1. Quid pro quo harassment:  This type of harassment is easy to recognize. In this case, the victim's employment is based on the condition of sexual advances, relations, or putting up with harassment in order to gain favorable treatment or work promotions.
2. Sexual harassment as an employment consequence: This type of harassment occurs when employment decisions are based on your rejection of or submission to sexual conduct.
3. Harassment that creates an offensive or hostile work environment:  This is the kind of sexual misconduct that offends a victim or causes so much humiliation and distress that it affects him or her to such an extent that it makes it difficult to perform work duties. This type of harassment can be directed at the victim, or indirect (witnessing harassment of another victim).

California courts do not recognize the fact that isolated incidents create a hostile work environment, unless it is extremely serious, such as rape or a similar type of sexual assault. The court will however, consider the totality of the circumstances to determine whether the conduct has created an offensive or hostile work environment. As part of the process they will review or analyze:

• the nature of unwelcome sexual acts
• frequency of offensive encounters
• the nature of situations in which the harassment occurred.

Many prudent employers have been providing sexual harassment training for years, so at first glance, there does not seem to be much more to the statute than to codify what they are doing already. However, it does outline specific requirements that every business owner who employs people should follow.

Assemblywoman Sarah Reyes - who sponsored the statute - felt that the existing laws prohibited sexual harassment, but it did little to eliminate the problem, which has a significant impact on businesses. Companies that wish to minimize their legal exposure to sexual harassment claims have been providing sexual harassment training for years.

AB 1825 is applicable to companies with fifty or more workers, or those who receive services from fifty or more contract workers. Covered employers are required to provide initial and continual training to their workers according to specific quality standards, based on the topics:

1. Federal and state statutory provisions concerning sexual harassment prevention;
2. Correcting and providing remedies for victims of workplace sexual harassment;
3. Supervisor training and instructions for preventing discrimination, harassment and retaliation.

Only expert sexual harassment trainers facilitators may present the training sessions, which should be closely examined by the employer, with whom the responsibility lays to prevent sexual harassment. The statute aso encourages employers to providing more and better sexual harassment training than the minimum requirements outlined in the bill.

Forming Discipline Policies & Implementing It In the Workplace

The bill also requires that employers equip their managers and supervisors to understand their responsibilities under the company's policy, complaints procedure, and discipline policies.This knowledge can te provided through regular training. The training should seek to enlighten workers on:

• the seriousness of the company's anti-harassment policy;
• the role of managers and supervisors who learn about a case of alleged harassment in the workplace;
• the types of conduct that would violate the company's anti-harassment policy;
• and the company's prohibition against retaliation.

When it comes to forming discipline policies, companies should provide comprehensive training not only on sexual harassment, but also on defence of:

• disability harassment
• ageism
• racism

By only providing sexual harassment training, plaintiffs could argue that the employer showed limited importance or respect for other types of harassment.

It is important to note that should a claim arise that a certain individual did not receive the training will not automatically result in liability of the employer for subsequent cases of harassment. While plaintiffs and their attorneys will likely argue that the company failed to meet training mandates, compliance on the other hand does not necessarily insulate them from liability of former, current or future employees. The Department of Fair Employment and Housing Act (DFEHA) will issue an order of compliance if an employer violates the mandates of the statute.

Forming Discipline Policies to Handle the Current State of Harassment in the Workplace

An employee (former, current, or independent contractor) may approach either the EEOC or the DFEHA or both with charges or complaints regarding harassment. Other individuals with professional relationships with businesses may also be classified as victims of harassment, including clients, customers, vendors and so forth. The victim's complaint will outline the general facts that support the harassment claim.

• The Equal Employment Opportunity Commission (EEOC) is tasked with prosecuting discrimination claims under federal law.
• The Department of Fair Employment and Housing Act (DFEHA) prosecutes claims that are brought under California law.

Once a complaint is filed, the DFEHA or EEOC will be responsible for investigating charges and taking action by issuing a "right to sue" letter to the victim, or taking direct action against the employer on behalf of the victim. A "right to sue" letter gives the victim permission to file a civil lawsuit.

If the EEOC and of DFEHA decide to bring a civil action, it may be brought before the Fair Employment and Housing Commission (FEHC), however, the damages they award is usually limited to $150,000 for emotional distress. The FEHC may not seek punitive damages.

However, under Title VII and FEHA, an employee is permitted to file his or her own lawsuit. In this case, punitive and compensatory damages are capped based on the number of individuals the company employees. Caps do not apply to FEHA civil action damages.

An employee who files a lawsuit under FEHA or Title VII may be entitled to recover:

• benefits (back pay)
• future benefits and wages (front pay)
• punitive damages
• lost wages
• emotional distress damages (humiliation and anxiety)

Back pay and front pay should not be considered compensatory damages under Title VII, and are therefore not subject to the above-mentioned cap.

Help With Forming Discipline Policies

Does your company need to implement anti-sexual harassment training or discipline policies? A California Sexual Harassment Attorney can guide you on your rights and legal responsibilities and help protect your company against lawsuits filed by victimized employees. Get in touch with us today on 800-905-1856 to schedule an appointment with one of our expert California sexual harassment attorneys.