Defense Law Articles
Written By: Sarah H. Walters
Neil, Dymott, Frank, McFall & Trexler APLC
San Diego, California United States
One glance at recent national headlines will reveal that sexual harassment has come to the forefront as a leading issue in the contemporary American workplace. Employment law experts have suggested the reporting of sexual harassment incidents in the workplace has increased as the awareness of sexual harassment increases. More than half of all California employers already report at least one sexual harassment lawsuit each year. And, in 2012, of the 19,839 employment law cases filed with the California Department of Fair Employment and Housing (“DFEH”), 6,169 were sexual harassment claims.1 This is nearly double the number of sexual harassment claims filed in 2011, and the number of sexual harassment claims is expected to continually rise.2
So what exactly is sexual harassment? The DFEH defines sexual harassment to include: unwanted sexual advances; offering employment benefits in exchange for sexual favors; actual or threatened retaliation; leering; making sexual gestures; or displaying sexually suggestive objects, pictures, cartoons, or posters; making or using derogatory comments, epithets, slurs, or jokes; sexual comments including graphic comments about an individual’s body; sexually degrading words used to describe an individual; or suggestive or obscene letters, notes, or invitations; physical touching or assault, as well as impeding or blocking movements; requests for sexual favors, unwelcome sexual advances or physical or verbal conduct of a sexual nature.
Under California law, it is unlawful for an employer to "fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring."3 Therefore, employers must take proactive measures to prevent a hostile work environment in order to not only protect their employees from unwanted sexual advances, but also to protect themselves from financially devastating sexual harassment litigation.
California already requires the supervisors of employers with 50 or more employees to be trained annually in the prevention of sexual harassment. All supervisors are required to complete two hours of interactive "classroom or other effective interactive training and education regarding sexual harassment" every two years.4 It is important to note that any employer with employees in California is obligated to provide supervisors with the necessary training, regardless of where the employer is based.
As part of this mandatory training, employees are educated as to the various forms of sexual harassment and pertinent legal principles. One recent change to California sexual harassment law came in the form of SB 292, an amendment relating to sexual harassment in the workplace.
SB 292, signed into law on August 12, 2013, amends the current sexual harassment law to encompass all types of sexual harassment, same-sex as well as opposite-sex. Sexual harassment is now defined as an activity that violates another person sexually, regardless of the sexual desire or orientation of the harasser.5 Before SB 292, the harasser’s conduct needed to be motivated by sexual desire.6 SB 292 further expanded the definition of “harassment because of sex” under to include threats of sexual violence and specify that an act is sexual harassment regardless of the sexual orientation, sexual desire, or intent of the harasser.
What does this expanded definition of “harassment because of sex” mean to California employers? In addition to the annual two hour training of supervisors, employers must implement a sexual harassment policy and take all reasonable steps to prevent discrimination and harassment from occurring to employees of both the same and opposite sex. This includes educating employees as to the evolving definition of what constitutes sexual harassment and posting the DFEH employment poster in a visible area in the workplace. Employers should also develop and implement a sexual harassment prevention policy with clearly defined complaint and investigation procedures.
12012 California Department of Fair Employment and Housing Calendar Year: 2012 Cases Filed: by Bases (19,839 Employment Cases).
22012 California Department of Fair Employment and Housing Calendar Year: 2012 Cases Filed: by Bases (19,839 Employment Cases).
3Cal. Gov. Code § 12940(k)
4Cal. Gov. Code § 12950.1
5Cal. Gov. Code § 12940, amended at section (a)(3)(C).
6The Appellate Court in Kelly v. The Conco Companies held there was not a hostile or abusive working environment due to sexual harassment, within the meaning of § 12940, subd. (j)(1), because even though the same-sex coworkers harassing the victim used graphic, vulgar, and sexually explicit language, the harassers did not intend the statements to be taken literally. 196 Cal. App. 4th 191; relying on Oncale v. Sundowner Offshore Services, Inc. 523 U.S. 75.