The #MeToo movement has taken the country by storm, and many observers wonder whether it will ever be the same again. Nowhere has it impacted life more than at the workplace, where men and women congregate in close proximity and where a particularly successful lawsuit can create a millionaire overnight.
An employer can be sued for sexual harassment even if the company is not at fault, because under California law, misconduct by an employee can be imputed to the employer and the employer can be held liable. Obviously, employers need to take heed – but how? The following are some pointers.
Understand the Legal Definition of Sexual Harassment
“Sexual harassment” can include anything from unwelcome sexual advances, an uninvited back rub, requests for sexual favors, and a wide variety of similar conduct, including offensive statements about women in general. Legally, the sexual harassment bull has two horns:
The hostile work environment claim; and
The quid pro quo claim.
A “hostile work environment” sexual harassment claim is based on a pattern of harassment that is so pervasive that it creates a hostile work environment. In a quid pro quo claim, the plaintiff alleges that he or she suffered an adverse employment outcome (being fired or passed up for promotion, for example) as retaliation for refusing sexual advances.
Create a Sexual Harassment Policy
It is imperative that you create a formal sexual harassment policy that every employee is required to sign. This policy must be structured so that it not only forbids sexual harassment but also forbids or discourages conduct that might lead to sexual harassment or might be characterized as such – personal questions about a co-worker’s social life, for example.
Be Careful Who You Hire
Carefully check the background of any job applicant before hiring him or her, using a reputable investigator. Check references, not only for job competence but also for personal reputation. By all means conduct thorough research of the applicant on the Internet, including social media posts. Dig deep. Certain internet companies will help their clients “crowd out” negative information by filling up the first page of search results with manufactured praise.
Institute Sexual Harassment Prevention Training
California law requires all workplaces with at least five employees to provide at least two hours of sexual harassment prevention training to supervisors and one hour of such training to non-supervisors. It might be a good idea to exceed these minimums.
Maintain an Effective Claims Process
Yes, your company could lose a sexual harassment lawsuit even if the company itself was not at fault as long as the at-fault individual was a company employee (rather than an independent contractor). If company management is found to have acted negligently in handling a sexual harassment complaint, however, things could get even worse. Make sure you have an effective claims process in place.
We’re on Your Side
At CKB Vienna LLP, we can help you formulate sexual harassment policies that will offer you maximum protection. And if you find yourself on the wrong end of an employee sexual harassment lawsuit, we will use every weapon in our legal arsenal to help you fight back.