Our California labor and employment attorneys recommend that California employers take the following five measures to prevent workplace harassment:
- Create a written policy against harassment.
- Communicate the policy to all employees.
- Train supervisors on the policy.
- Post the poster on sexual harassment created by the California Department of Fair Employment and Housing (DFEH).
- Distribute the DFEH brochure on sexual harassment.
No California employer wants to be sued for workplace harassment (either sexual harassment or non-sexual harassment). And it is a rare California employer who condones harassment and its negative effect on employee morale. Yet complaints of sexual harassment to DFEH are extremely common.
Which California employers need to take measures to prevent workplace harassment?
All of them! Anti-harassment measures like the ones our California employment attorneys recommend are not optional for businesses that want to prevent harassment complaints.
While most of California workplace discrimination law only applies to employers who employ five (5) or more persons,1 anti-harassment rules under the California Fair Employment and Housing Act (FEHA) apply to employers of all sizes.2
This means that even if you are a very small business and only have one person working for you, you may still be liable for any on-the-job harassment experienced by that person.
In fact, California employers are liable for workplace harassment under the FEHA even if:
- The harassed person is an independent contractor, unpaid intern, or volunteer rather than an employee; or
- The person doing the harassing is a client, customer, vendor, or contractor rather than a supervisor or employee.3
This is why our California employment and harassment attorneys recommend that EVERY employer be aware of California laws and best practices on harassment--even if it may seem hard to imagine those laws actually affecting you.
Harassment Prevention Measure #1:
Draft a written harassment policy
Every California employer should have a written harassment policy. Most larger employers include this policy within their employee handbook.
The written harassment policy should contain all of the following:
- A definition of harassment (including both "quid pro quo" harassment and "hostile work environment" harassment);
- A statement that harassment is prohibited and that employees have a right to have any harassing or discriminatory treatment stopped immediately;
- Information about who employees should contact if they experience harassment;
- A statement that any harassment complaint will result in an investigation, that the investigation will be kept as confidential as possible, and that the complaining party will be informed of the results;
- A description of disciplinary measures that may be taken against anyone who has engaged in harassment; and
- A statement that employees complaining of harassment will not be subject to any retaliation whatsoever.
If ten percent (10%) or more of employees at a particular facility or location speak a language other than English, then the employer is required to translate the anti-harassment policy into every language which is spoken by at least ten percent of the workforce.4
Several additional tips about how to draft some of these sections of an employer harassment policy are:
Definition of harassment
A definition of harassment included in a written anti-harassment policy will list the personal characteristics protected by California's anti-harassment law.
It should also specify that California law prohibits harassment by coworkers and third parties with whom the employee comes into contact as well as by supervisors/bosses.5
The following is an example:
“Workplace harassment is any unwelcome or unwanted conduct that denigrates or shows hostility to another person on the basis of any personal characteristic protected by law, including race, sex, religion, national origin, sexual orientation, gender identity, disability, marital status, age, and military or veteran status, among others. Sexual harassment includes unwelcome sexual advances, conduct, or comments, particularly when an employment benefit is conditioned upon providing sexual favors or entering a sexual relationship (quid pro quo harassment), or when the harassing behavior interferes with an employee's job performance (hostile work environment harassment). Harassment may be committed by coworkers and third parties as well as by supervisors and bosses.”
Whom to contact with reports about harassment
Our California employment attorneys recommend that an employer's written harassment policy be very clear and specific on whom employees should contact in the event that they experience harassment.
It is very important to let employees know that they may bypass a supervisor whom they believe is harassing them. Therefore, a policy should provide multiple avenues for lodging a harassment complaint.
For example, the anti-harassment policy might state that employees experiencing workplace harassment may contact any of the following:
- their supervisor,
- the human resources department,
- a complaint hotline or ombudsperson, or
- any member of management up to and including the CEO.
(In turn, all supervisors and managers need to be instructed on transmitting any harassment complaints to the appropriate person in the company, like a human resources manager.)6
An anti-harassment policy should ideally describe disciplinary measures that may be taken against people who commit harassment in an open-ended way. The goal is to avoid suggesting that there is either a minimum or maximum expected penalty for workplace harassment.
For example, an employer harassment policy put in place to prevent workplace harassment might state that harassers will be subject to “appropriate disciplinary measures, up to and including termination of employment."
The FEHA prohibits retaliation against employees who complain about discrimination or harassment.7
This is why it is of the utmost importance that policies put in place by employers to prevent workplace harassment state clearly that employees will not be subject to retaliation for complaining about harassment or participating in harassment investigations.
This portion of an anti-harassment policy should also let employees know that any allegations of retaliation will be investigated, and that appropriate disciplinary measures, up to and including termination, will be imposed on those who retaliate.
Harassment Prevention Measure #2:
Communicate the anti-harassment policy
The second important measure California employers should take to avoid workplace harassment claims is to make sure the written harassment policy is communicated to all employees.
Employees should receive the anti-harassment policy on their first day of work. Acceptable methods of distributing the policy to employees include:
- Printing and providing a copy to all employees, possibly as part of an employee handbook;
- Sending the harassment policy via email;
- Posting a current version of the policy on a company intranet.8
Regardless of the method of distribution, employers should also require employees to sign and return an acknowledgment page, stating that they have received the anti-harassment policy. (If the policy is posted on an intranet, it should incorporate a tracking system that can track whether employees have accessed the policy and acknowledged receipt.)9
Finally, when an employer makes changes to its written policy on harassment, it should require employees to sign and return a new acknowledgment page stating that they have received the revised version.
Harassment Prevention Measure #3:
Train supervisors on the anti-harassment policy
Another important step that California employers should take to prevent workplace harassment complaints is to make sure that all supervisors receive training on the company's written harassment policy.
The California Fair Employment and Housing Act actually requires that all California employers with fifty (50) or more employees provide each supervisor with at least two (2) hours of classroom or interactive online training on sexual harassment within six (6) months of hiring or promoting them to a supervisory position, and then again every two (2) years. (Companies that fail to meet this requirement will be ordered to do so by the FEHC.)10
While all California employers subject to that requirement should abide by it, our California labor and employment lawyers recommend that employers do more than the bare minimum--for example, that smaller employers also train supervisors on the anti-harassment policy, and that training be provided on forms of harassment other than sexual harassment.11
Proper training of supervisors on harassment policy and prevention can be helpful to employers looking to avoid workplace harassment problems in all of the following ways:
- Helping to ensure that supervisors do not personally violate the employer's anti-harassment policy;
- Helping supervisors recognize possible harassment situations; and
- Giving supervisors the information they need to handle harassment issues if they do arise.
The employment attorneys at Shouse Law Group recommend that employers document any and all training sessions and ask participating supervisors to verify their participation in writing.
Harassment Prevention Measure #4:
Post the DFEH harassment poster in a prominent location
This step is self-explanatory and is among the simplest measures a California employer can take to prevent workplace harassment.
California DFEH produces a poster entitled “California Law Prohibits Workplace Discrimination and Harassment.”
Moreover, the Fair Employment and Housing Act requires employers to post a current version of the poster in a prominent and accessible location in the workplace.12
Harassment Prevention Measure #5:
Distribute the DFEH brochure on sexual harassment
This is another simple step toward reducing the likelihood of a California workplace harassment claim.
DFEH publishes a brochure called "Sexual Harassment: The Facts About Sexual Harassment." California employers are required by law to distribute this brochure (or an alternative brochure containing similar information that an employer creates itself) to employees.13
Our California labor and employment attorneys recommend that all California employers make sure that every employee receives a copy of the DFEH anti-harassment brochure--for example, by distributing copies with pay stubs or W-2 tax forms.
Will taking these measure to prevent workplace harassment mean that I can avoid legal liability for harassment?
Unfortunately, California harassment law does not create any "safe haven" for employers. There is no anti-harassment measure that will guarantee that an employer will not face a DFEH complaint or a successful lawsuit about sexual or other harassment in the workplace.14
But every measure taken to avoid harassment will help in the unfortunate event of a lawsuit--as will taking the right steps when an employee first complains of harassment.
If harassment is committed by a supervisor, then an employer is strictly liable and must pay damages to the individual alleging harassment even if the employer was not at fault. But in the increasingly common situation of harassment by non-supervisors, an employer will only be liable for damages if the employer was negligent.15
Also, California employment law also states that a failure to take an anti-harassment measure that is mandated by law--such as posting the DFEH poster or conducting required supervisor harassment training--will NOT in and of itself lead to a finding that an employer was negligent and is liable for damages in a harassment suit.16
Call us for help . . .
For questions about how California employers can prevent workplace harassment claims under California's Fair Employment and Housing Act, or to discuss your case confidentially with one of our skilled California labor and employment attorneys, do not hesitate to contact us at Shouse Law Group.
We have local employment law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
- Government Code 12926(d) GC [definition of employer for purposes of employment discrimination law]. ("(d) “Employer” includes any person regularly employing five or more persons, or any person acting as an agent of an employer, directly or indirectly, the state or any political or civil subdivision of the state, and cities, except as follows: “Employer” does not include a religious association or corporation not organized for private profit.")
- Government Code 12940(j) GC [California harassment law]. ("(j)(1) For an employer, labor organization, employment agency, apprenticeship training program or any training program leading to employment, or any other person, because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, to harass an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract. Harassment of an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract by an employee, other than an agent or supervisor, shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action. An employer may also be responsible for the acts of nonemployees, with respect to sexual harassment of employees, applicants, unpaid interns or volunteers, or persons providing services pursuant to a contract in the workplace, where the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing cases involving the acts of nonemployees, the extent of the employer's control and any other legal responsibility that the employer may have with respect to the conduct of those nonemployees shall be considered. An entity shall take all reasonable steps to prevent harassment from occurring. Loss of tangible job benefits shall not be necessary in order to establish harassment. . . . (3) An employee of an entity subject to this subdivision is personally liable for any harassment prohibited by this section that is perpetrated by the employee, regardless of whether the employer or covered entity knows or should have known of the conduct and fails to take immediate and appropriate corrective action. (4)(A) For purposes of this subdivision only, “employer” means any person regularly employing one or more persons or regularly receiving the services of one or more persons providing services pursuant to a contract, or any person acting as an agent of an employer, directly or indirectly, the state, or any political or civil subdivision of the state, and cities. The definition of “employer” in subdivision (d) of Section 12926 applies to all provisions of this section other than this subdivision.")
- California Code of Regulations 11023 CCR -- Harassment and Discrimination Prevention and Correction. ("(d) Any employer whose workforce at any facility or establishment contains 10 percent or more of persons who speak a language other than English as their spoken language shall translate the [workplace harassment] policy into every language that is spoken by at least 10 percent of the workforce.")
- California Code of Regulations 11023 CCR -- Harassment and Discrimination Prevention and Correction. ("(b) Employers have an affirmative duty to create a workplace environment that is free from employment practices prohibited by the Act. In addition to distributing the Department's DFEH-185 brochure on sexual harassment, or an alternative writing that complies with Government Code section 12950, an employer shall develop a harassment, discrimination, and retaliation prevention policy that: (1) Is in writing; (2) Lists all current protected categories covered under the Act; (3) Indicates that the law prohibits coworkers and third parties, as well as supervisors and managers, with whom the employee comes into contact from engaging in conduct prohibited by the Act; . . . .")
- California Code of Regulations 11023 CCR -- Harassment and Discrimination Prevention and Correction. ("(b) In addition to distributing the Department's DFEH-185 brochure on sexual harassment, or an alternative writing that complies with Government Code section 12950, an employer shall develop a harassment, discrimination, and retaliation prevention policy that: . . .(5) Provides a complaint mechanism that does not require an employee to complain directly to his or her immediate supervisor, including, but not limited to, the following: (A) Direct communication, either orally or in writing, with a designated company representative, such as a human resources manager, EEO officer, or other supervisor; and/or (B) A complaint hotline; and/or (C) Access to an ombudsperson; and/or (D) Identification of the Department and the U.S. Equal Employment Opportunity Commission (EEOC) as additional avenues for employees to lodge complaints. (6) Instructs supervisors to report any complaints of misconduct to a designated company representative, such as a human resources manager, so the company can try to resolve the claim internally. Employers with 50 or more employees are required to include this as a topic in mandated sexual harassment prevention training, pursuant to section 11024 of these regulations.")
- Government Code 12940(h) GC [California discrimination and harassment law]. ("(h) For any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.") See also California Code of Regulations 11023 CCR -- Harassment and Discrimination Prevention and Correction. ("(b) . . . In addition to distributing the Department's DFEH-185 brochure on sexual harassment, or an alternative writing that complies with Government Code section 12950, an employer shall develop a harassment, discrimination, and retaliation prevention policy that: . . . (10) Makes clear that employees shall not be exposed to retaliation as a result of lodging a complaint or participating in any workplace investigation.")
- California Code of Regulations 11023 CCR -- Harassment and Discrimination Prevention and Correction. ("(c) Dissemination of the policy shall include one or more of the following methods: (1) Printing and providing a copy to all employees with an acknowledgment form for the employee to sign and return; (2) Sending the policy via e-mail with an acknowledgment return form; (3) Posting current versions of the policies on a company intranet with a tracking system ensuring all employees have read and acknowledged receipt of the policies; (4) Discussing policies upon hire and/or during a new hire orientation session; and/or (5) Any other way that ensures employees receive and understand the policies.")
- Government Code 12950.1 GC -- Sexual harassment training and education requirements for supervisory employees; contents; prevention of abusive conduct; employer liability; violations; minimum threshold of training; definitions. ("(a) An employer having 50 or more employees shall provide at least two hours of classroom or other effective interactive training and education regarding sexual harassment to all supervisory employees in California within six months of their assumption of a supervisory position. An employer covered by this section shall provide sexual harassment training and education to each supervisory employee in California once every two years . . . .(e) If an employer violates this section, the department may seek an order requiring the employer to comply with these requirements.")
- See Government Code 12950.1 GC -- Sexual harassment training and education requirements for supervisory employees; contents; prevention of abusive conduct; employer liability; violations; minimum threshold of training; definitions. ("(f) The training and education required by this section is intended to establish a minimum threshold and should not discourage or relieve any employer from providing for longer, more frequent, or more elaborate training and education regarding workplace harassment or other forms of unlawful discrimination in order to meet its obligations to take all reasonable steps necessary to prevent and correct harassment and discrimination.")
- Government Code 12950 GC -- Sexual harassment; amendment of poster; distribution of information sheet; contents of information sheet; violations. ("In addition to employer responsibilities set forth in subdivisions (j) and (k) of Section 12940 and in rules adopted by the department and the council, every employer shall act to ensure a workplace free of sexual harassment by implementing the following minimum requirements: (a) The department shall amend its current poster on discrimination in employment to include information relating to the illegality of sexual harassment. . . . Each employer shall post the amended poster in a prominent and accessible location in the workplace.")
- Government Code 12950 GC -- Sexual harassment; amendment of poster; distribution of information sheet; contents of information sheet; violations. ("(b) Each employer shall obtain from the department its information sheet on sexual harassment, which the department shall make available to employers for reproduction and distribution to employees. . . . Each employer shall distribute this information sheet to its employees, unless the employer provides equivalent information to its employees that contains, at a minimum, components on the following: (1) The illegality of sexual harassment. (2) The definition of sexual harassment under applicable state and federal law. (3) A description of sexual harassment, utilizing examples. (4) The internal complaint process of the employer available to the employee. (5) The legal remedies and complaint process available through the department. (6) Directions on how to contact the department. (7) The protection against retaliation provided by Title 2 of the California Code of Regulations for opposing the practices prohibited by this article or for filing a complaint with, or otherwise participating in an investigation, proceeding, or hearing conducted by, the department or the council. (c) The [sexual harassment] information sheet or information required to be distributed to employees pursuant to subdivision (b) shall be delivered in a manner that ensures distribution to each employee, such as including the information sheet or information with an employee's pay.")
- Government Code 12950 GC -- Sexual harassment; amendment of poster; distribution of information sheet; contents of information sheet; violations. ("(d) Notwithstanding subdivisions (j) and (k) of Section 12940, a claim that the information sheet or information required to be distributed pursuant to this section [DFEH posters and brochures on harassment prevention] did not reach a particular individual or individuals shall not in and of itself result in the liability of any employer to any present or former employee or applicant in any action alleging sexual harassment. Conversely, an employer's compliance with this section does not insulate the employer from liability for sexual harassment of any current or former employee or applicant.") See also Government Code 12950.1 GC -- Sexual harassment training and education requirements for supervisory employees; contents; prevention of abusive conduct; employer liability; violations; minimum threshold of training; definitions. ("(d) Notwithstanding subdivisions (j) and (k) of Section 12940, a claim that the training and education required by this section did not reach a particular individual or individuals shall not in and of itself result in the liability of any employer to any present or former employee or applicant in any action alleging sexual harassment. Conversely, an employer's compliance with this section does not insulate the employer from liability for sexual harassment of any current or former employee or applicant.")
- Government Code 12940(j) GC [California harassment law], endnote 2 above. See also Department of Health Services v. Superior Court (2001). 94 Cal. App. 4th 14.
- See endnote 9, above.