Under the California Fair Employment and Housing Act, Government Code 12940 GC, employees may sue their employers for workplace harassment committed by a client of the employer. This is sometimes called third-party sexual harassment.
An employee may sue for workplace harassment if the employer’s behavior regarding the harassment is negligent. An employer’s behavior is negligent if it:
- knows or should have known of any harassment; and,
- fails to take appropriate corrective action.
Harassment by a client is a type of “hostile work environment” harassment, as opposed to “quid pro quo” sexual harassment.
If an employee experiences harassment by a client, he/she should take appropriate action. This includes reporting the incident to:
- a boss
- a supervisor, or
- a company’s human resources department
If no action is taken after a report is made, the employee must contact an experienced California sexual harassment attorney for help.
When an employee can sue
Government Code 12940 GC is the California statute governing sexual harassment. The code section is also known as the Fair Employment and Housing Act (FEHA). The section states that harassment in the workplace is not permitted in California.
The FEHA says that harassment can take place by:
- a supervisor,
- a non-supervisor colleague, or
- certain non-employees (like an employer’s clients or independent contractors).
Under GC 12940(j)(1), an employer may be held liable for harassing acts of an employer’s client when the employer is negligent regarding the acts. Negligence occurs when two conditions are met. These are:
- the employer knows or should have known of the harassment; and,
- the employer does not take appropriate corrective action.
In determining if an employer is liable in these types of cases, California courts consider the employer’s degree of control over the client.
California law states that all employers who are aware of harassment of their employees by clients, customers, or independent contractors have an obligation to take steps to alleviate the hostile work environment this creates. Employers must also take reasonable steps to prevent harassment from occurring.
Hostile work environment harassment vs. quid pro quo sexual harassment
Under California employment law, “workplace sexual harassment” can mean either of the following:
- a hostile work environment, in which unwelcome severe or pervasive sexual advances or comments have a drastic impact on the work environment; or,
- “quid pro quo” sexual harassment, in which a supervisor attempts to “trade” preferential treatment at work for sexual favors.
Both “quid pro quo” harassment and “hostile work environment” harassment require that sexual conduct be unwelcome.
Steps an employee should take
If an employer is harassed in the workplace, it is critical that he/she take appropriate action. This includes reporting the incident(s) to any of the following:
- a boss,
- a supervisor,
- a company’s human resources department, or
- any person or entity that the employer has designated to investigate harassment claims.
After a report is made, an employer should investigate the allegation(s). If they involve a client, the employer may:
- assign a new employee to work with the client,
- meet with the client and inform that his/her conduct is not permissible, or
- end the business relationship with the client.
If no action is taken after a report is made, the employee should contact an experienced California sexual harassment attorney for help.