Is Sexual Harassment Still a Problem?

1. PreventingSexual Harassmentunderstanding the lawDavid Cullen | Staff CounselKevin Pease | Civil Rights FellowCalifornia Department of Fair Employment & Housingwww.dfeh.ca.gov

2. Is Sexual Harassment Still a Problem? • Total employment discrimination complaints filed with the DFEH for 2008-2013: 111,132 (Total # of Complaints of Discrimination) • Percentage of those which were sexual harassment complaints: 23% (25,940)

3. Prevalence of Sexual Harassment Claims against State Agencies • 19% of employment discrimination complaints against CA State Agencies filed with the DFEH were sexual harassment complaints • [Years of 2008 - 2013 (521 / 2714) ]

4. Sexual Harassment Claims Are Costly • Jury verdicts and settlements demonstrate risks of claims • 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. • Employee can recover lost wages, punitive damages, emotional distress • Employer suffers loss of staff time to investigate and resolve claim • Lowered staff morale and work productivity • Attorneys fees and defense costs

5. AN OUNCE OF PREVENTION . . . • The Fair Employment and Housing Act (FEHA) requires: All supervisors within six months of hire, must participate in 2 hours of sexual harassment prevention training Repeat training every two years

6. Educational Objectives • Recognize sexual harassment • Understand rights and responsibilities • Know legal remedies

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

8. Who is protected from Sexual Harassment? • All Employees Are Protected Regardless of Size of Employer • Those Associated With Employee Subjected to the Harassment • [Gov. Code sec. 12926, subd., (m)] • Independent contractors • Job applicants

9. Who is liable? • Strict Liability Employers are strictly liable for harassment committed by a supervisor, [Kelly-Zurian v. Wohl Shoe Co., (1994) 27 Cal.App.4th 397; Gov. Code §§ 12925, subd., (d), 12926, subd., (d), & 12940, subd. (j)(1)] • 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. • Employees and Non-Employee Harassers are also Personally Liable • Gov. Code section 12940, subdivisions, (i) & (j)(3)

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. • Did sexual harassment occur? • Was the Big Hospital liable for the acts of the individual doctors? • Are the doctors individually liable?

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

12. Hypothetical #2 • Many male police officers were unhappy when Polly Police Officer joined the force. • These male officers spread untrue rumors about Polly’s abilities, singled her out for graveyard shifts, filed unsubstantiated complaints about her work, and spread rumors that Polly 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. • Did any sexual harassment occur? • If ‘Yes’, is the employer liable?

13. Issues presented in Sexual Harassment cases • Were there unwelcome sexual advances? • Remember Any Employee’s Exposure to Sexually Offensive Conduct is What Can Trigger Liability

14. Types of Sexual Harassment • Hostile Work Environment • [Gov. Code sec. 12940, subd. (j); CACI 2521 – 2524] • Quid Pro Quo • [Gov. Code sec. 12940, subd. (j); CACI 2520] • Adverse employment actions are not necessary to establish certain types of sexual harassment claims • [Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3rd 590.]

15. Quid Pro Quo • sexual harassment in which a job benefit is conditioned upon sexual favors

16. Hostile Work Environment • Harassment directed at complaining party; or • Complaining party witnessed harassment of others

17. Hypothetical #3 • Patty’s supervisor, Professor Danny, regular views pornography on his computer. Professor Danny also gropes Professor Sarah on a regular basis without Professor Sarah’s consent. Professor Danny has never groped Patty or forced her to watch pornography. He does, however, watch it for one to two hours a day in her presence. Was Patty a victim of Sexual Harassment?

18. Harassment Because of Sex • Harassing behavior must be because of complainant’s sex or gender • Includes same-sex harassment, no sexual desire needed, sexual orientation of victim or aggressor is not relevant • Harassment does not itself have to be sexual in nature • [SB 292 (Corbett) addressing the ruling in Kelley v. Conco Companies (2011) 196 Cal.App.4th 191]

19. Hypothetical # 4 • During a driving test, a male supervising driving instructor asked a Test Taker, a Japanese woman, whether she, was like his Japanese wife who enjoyed sex. The Supervising Instructor asked the Test Taker about her sexual experiences and described his preferences. When they returned to the DMV the Test Taker fled in tears. Did sexual harassment occur? Does the instructor’s conduct subject him to any other risks other than FEHA court charges?

20. Severe or Pervasive • Harassing conduct is so severe OR pervasive that it alters the work environment • Think of it like a bucket that you need to fill to the top. You can fill it with “severe” conduct, “pervasive” conduct, or both.

21. Subjectively Severe or Pervasive • The victim herself must perceive the work environment as hostile or abusive.

22. 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.

23. Hypothetical #5 • The CEO of a large company tells Patricia, in the presence of other employees “You’re a woman, what do you know?” The CEO also made sexual innuendo’s about Patricia’s clothing and offered to have sex with her. Patricia was offended and quit her job, but did not suffer any psychological trauma. Was this conduct objectively severe or pervasive? Was the conduct subjectively severe or pervasive? Did sexual harassment occur?

24. 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”

25. Hypothetical #6 • 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.” • Did sexual harassment occur? • Did the Peter engage in any other conduct that would subject him to discipline?

26. Questions • Use the Q&Amenu to submit questions. • To ask a question, type your question in the Q&A text box, and then clickAsk.

27. What is Verbal Harassment? • Foul or obscene language • Derogatory comments • Explicit discussions about sexual activities • Comments about other people’s physical attributes

28. Unwanted Touching isSexual Harassment • Kissing • Hugging • Grabbing • Impeding or blocking movement • Assault

29. The employer May be Liable for All Harassment Connected to the Business • Business travel • Company parties

30. Hypothetical # 7 • Bettie worked at a fast food restaurant. Bettie went out socially with the male night shift supervisor named ‘Shane’. Shane picked Betty up at a grocery store near the restaurant. They had dinner and went back to Shane’s house where there was sexual activity. Betty says that Shane raped her. • The next day, Betty advised her manager of the restaurant of what had happened and quit her job on the spot • Did FEHA sexual harassment occur? • Why or why not? • If yes, who is liable?

31. Widespread Sexual Favoritism = Hostile Work Environment • Favoritism directed toward a third party can cause a hostile environment • Supervisor has Personal Liability • Employer Also Liable where: • Asupervisor created the widespread sexual favoritism; and • Employer knew or should have known of the widespread sexual favoritism and failed to take immediate and appropriate corrective action • [Judicial Council Of California, Civil Jury Instruction 2521C]

32. “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).)

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

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

35. FEHA Covers More Employers, plus Independent Contractors FEHA Title VII Employer must have 15 or more employees. • All employers covered, even those employing only one person • Includes independent contractors • Persons providing services pursuant to a contract

36. Hypothetical #8 • As a contractor, did Sally have standing to complain about sexual harassment? • Sally Social Worker, who was temporarily working under contract with Department of Corrections, complained of sexual harassment by the prison chaplain. • The chaplain, while initially courteous, was interested in a sexual relationship with the complainant. Sally told him point blank that she had no interest in such a relationship. • The chaplain persisted, harassing her at work and off duty: he appeared at complaint’s home in the middle of the night; he suggested that she “might like it,” if he raped her. • Complainant was consistently clear with the chaplain that she was offended by his conduct. When she complained to Department officials, her contract was terminated.

37. 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.

38. 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 posters • DFEH information sheet

39. Hypothetical #9 • Peter believes that he has suffered sexual harassment at Computers Inc. and complains to Human Resources. His human resources representative, Toby, interviews Peter, the alleged harasser, and several witnesses over the next week. In his interview, Peter provides information that directly conflicts his original allegations. Computer’s Inc. closes the investigation. Did Computers Inc. instigate a reasonable investigation? Is there a potential violation of Government Code section 12940, subd., (k)?

40. http://www.dfeh.ca.gov/Publications_Publications.htm

41. What Do I Do when Someone Complains? • ADVICE FOR EMPLOYERS • Listen actively Allow complainant to tell his/her story. • Keep parties separate Never force a confrontation between complaining employee and alleged harasser. • Be candid with the parties and witnesses: Complaints and interviews not confidential.

42. Employer’s Duty to Investigate • Conduct an immediate inquiry. • Encourage a written complaint. • Protect complaining party from retaliation.

43. What is an Effective Investigation? • Consistently Follow Company Procedures • Engage in a qualified, impartial investigation • Remain objective • Investigate and obtain details • Frequency • Duration • Nature of incidents • Explore relationship between the parties

44. How to Interview Witnesses • Admonish witnesses not to interfere with investigation. • Make credibility determinations based on: • Facts and documents gathered; • Demeanor; and, • Motivations

45. Outcome of Investigation • Draw a conclusion: Is the complaint meritorious? [CACI 5003 Factors] • (a) How well did the witness see, hear, or otherwise sense what he or she described ? • (b) How well did the witness remember and describe what happened? • (c) How did the witness look, act, and speak while describing what happened? • (d) Did the witness have any reason to say something that was not true? For example, did the witness show any bias or prejudice or have a personal relationship with any of the parties involved in the case or have a personal stake in how this case is decided? • (e) What was the witness's attitude toward this case or about describing what happened?

46. Take ACTION • Take timely, appropriate corrective action • Provide remedy to complaining employee

47. Sexual orientation and gender identity or gender Discrimination [CACI 2500] • Defendant was an employer or other covered entity; • Complainant was an employee of defendant or in a covered relationship to defendant; • Defendant’s took unlawful actionagainst theplaintiff; • Complainant’s gender, gender ID, or sexual orientation was a substantialmotivatingreason for the unlawful action; • Complainant was harmed; and • The unlawful action was a substantial factor in causing the Complainant’s harm.

48. Affirmative Defenses • Legitimate, non-discriminatory reason Bona fide occupational qualification

49. Retaliation • “It is an unlawful employment practice . . . [f]or any employer…to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under [the FEHA] or because the person has filed a complaint, testified, or assisted in any proceeding under [the FEHA].” (Gov. Code, § 12940, subd. (h).)

50. Elements of a retaliation claim • CACI 2505 • 1 The Employee engaged a protected activity • 2 The Employer either discharged/demoted/or took other adverse action against that employee • 3 That Employee’s protected activitywas a substantial motivating reason for the employer’s decision to take the adverse employmentactionagainst the employee • 4 That Employee was harmed and • 5 That the employer’s adverse action was a substantial factor in causing harm to the employee