A Post Harvey, Moore, Louis C.K. World

It is everywhere.  People you thought would never do it…they have done it.  People you respected, want to respect, can no longer respect, are facing sexual harassment charges, and their reputations, businesses, and livelihoods are going up in flames.  The world is changing because women are finding their collective voice to face their harassers and to change the workplace culture.  It’s about time.  But, what will this month’s headlines do to evoke change?  And what role do you, as an employer, have in creating a non-hostile workplace?  If we can learn anything from the “#MeToo” movement, it is that harassment is pervasive, often done behind closed doors, and we can no longer pretend that it does not happen in our businesses, our industries, or by people we like.

With this topic at the forefront of our social consciousness, it is the right moment to look at your own business culture.  Has management set the tone as to what is acceptable behavior? Do your employees tell inappropriate jokes, or email offensive cartoons, or work sexual innuendo into their watercooler conversations?  Do your employees gossip about how people dress or their dating behavior, and do you join in? While the stories of men pinning women in elevators and disrobing in front of them in hotel room meetings is clearly actionable conduct, a viable sexual harassment claim does not require such egregious acts.  In California, the legal standard is that the harassment be severe OR pervasive.  Severe conduct must be sufficiently extreme as to change the terms and conditions of employment.  The court looks at whether the harassing conduct unreasonably interfered with an employee’s work performance, among other factors. Pervasive conduct is conduct that happens continuously and in a concerted manner (i.e. a manager calling women derogatory terms in every day conversation, or employees being leered at weekly by a delivery person, while the boss disregards their complaints).

Though most of the stories we are hearing about concern a male harassing a female, the law recognizes that harassment can be female on male, or by the same sex.  The Fair Employment and Housing Act (“FEHA”), explicitly states that sexually harassing conduct need not be motivated by sexual desire. California Government Code § 12940(j)(4)(C).  To be sued for sexual harassment, you need only have one employee.  Under both federal law (Title VII) and the FEHA, sexual harassment can occur between members of the same gender if the plaintiff can establish that the harassment amounts to discrimination because of sex.

So, what can business owners do to change this behavior that often happens behind closed doors, and that subjects them to extreme liability? For one, having an employee handbook that clearly sets forth the laws and expectations of acceptable behavior at the outset of the employment relationship is a good start.  However, having an employee handbook with a harassment policy that is not spoken about, nor upheld is useless.  Second, employers can strengthen their position that the company abides by its harassment policy by training managers how to spot inappropriate conduct and how to properly address complaints by victims.  Though California legally mandates that managers receive sexual harassment training (every two years) for companies with 50 or more employees, it is a wise business decision to train all employees, regardless of company size.**(see legal update below).  Third, a company must act when violations of law have been proven.  As we have learned from the various scandals in the news, those who knew of the harassers’ proclivities to behave badly, are just as culpable for enabling the offensive behavior in a cone of silence.

Human nature will not change overnight, but cultural norms as to what is acceptable behavior is evolving.  Thanks to the bravery of women and men who have come out of the shadows to name their harassers, it’s a new world, and the responsibility of employers to create workplace cultures of respect has never been greater.   For more information about how you can better protect your company from sexual harassment claims, please contact the lawyers at WorkWise Law, PC.

** Legal update, since this article was posted, the law in California has changed. Governor Brown signed SB 1343 into law, which is effective January 1, 2019. This law requires employers with 5 or more employees to provide sexual harassment training. One hour must be provided for employees and 2 hours of training must be provided for managers/supervisors every other year, and within 6 months of earning a promotion to a management position.

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