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Tuesday, Mar 19, 2024
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Zero Tolerance

Bob Filner’s resignation as San Diego mayor after less than a year in office over allegations of sexual harassment can teach all employers to be prepared and act swiftly.

To guard against such scandal and legal woes, employers should have policies and procedures in place to minimize exposure in the event that an employee files a sexual harassment claim.

The results for those who lack such policies — or who don’t follow them — can be very costly, as the city of San Diego is finding.

Employers that are put on notice about complaints must act immediately to correct the situation and ensure that it doesn’t continue, said Micaela Banach, a partner at Kirby Noonan Lance & Hoge LLP.

“If they don’t, they can be on the hook for serious damages,” Banach said.

She said that while harassment cases tend to come in “waves,” the number of cases overall tends to be steadily diminishing based on anecdotal experience during her decade of practice.

“Employees and employers are much more aware of the issues surrounding sexual harassment, so you see much less of it,” she said. “Everyone is much more cognizant of their behavior at work, knowing that it’s no longer acceptable behavior to tell dirty jokes or send inappropriate emails.”

One reason for the decline in such cases is that there are far more women in the workplace, she said.

“What was tolerable 20 to 30 years ago is certainly no longer tolerable today,” she said.

Exhaust Administrative Remedies

The U.S. Equal Employment Opportunity Commission and the California Department of Fair Employment and Housing can assess fines if they find evidence of harassment, though the state’s DFEH will more likely provide special letters that allow claimants to proceed with lawsuits.

“They often give employees what’s called a ‘right to sue letter,’” Banach said, adding that a lawsuit can’t be filed without one and that those complaints must go through the investigative process before a lawsuit can be filed. “You have to exhaust your administrative remedies.”

In many cases, however, the agency will issue the letter without investigating. And employee can file a complaint online at the DFEH’s website and receive a right to sue letter “almost immediately,” she said.

Retaliation Is Unlawful, But Happens

Despite the increase in the female workforce, many women who feel they are being harassed are reluctant to take action for fear of retaliation.

“Many employees are afraid to file a complaint or say anything,” Banach said.

Such fear is often justified. Even though retaliation against a person alleging sexual harassment is illegal, “it still happens,” Banach said. “You still see cases where they step up and say something and they get fired, or they don’t get the promotions, or they are disrespected.”

‘City Hall Is an Exaggeration’

While the situation involving former Mayor Filner provides a cautionary tale for all employers, it also contains some less common aspects in that Filner was simultaneously involved in a legal matter and a political scandal.

“What happened at City Hall is an exaggeration of what can happen in the private workplace because of the political ramifications that were involved,” said Dave Carothers, managing partner in the local office of Carothers DiSante & Freudenberger LLP.

Several of the complaints against Filner would not constitute sexual harassment under the law, Carothers said.

That’s because several of the women were not city employees, but rather colleagues or professional equals. These complaints do not have lawsuits associated with them, but rather served to call attention to further allegations of inappropriate conduct.

The two statutes that govern sexual harassment — defining who it covers and who may sue for it — apply only to employers, Carothers said. Therefore, a professional colleague at another company or social acquaintance cannot sue for sexual harassment under those laws.

One scenario that may present a gray area is when an independent contractor of the employer is involved. California has a statute that allows independent contractors to be covered by employment discrimination laws.

No-tolerance Policy a Must

Carothers believes the term harassment is often used too loosely in the workplace.

The term has special meaning in the legal world that doesn’t always include unwanted advances for sex or related sexual favors. Under state and federal statutes, harassment can include such things as a supervisor offering a promotion for sex or constantly commenting about a worker’s dress or appearance, as well as a supervisor firing or demoting an employee for not responding to such advances.

“Under the legal definition, certain things have to be proven in front of a fact finder or jury,” Carothers said. Usually, it involves a supervisor and employee, and whether or not the employer allows a “hostile environment” to exist.

Every employer must have a sexual harassment policy in place and must tell managers that they will not tolerate harassment, Carothers said. Also, businesses must give employees a way to file a complaint if they feel they are being harassed.

Many larger businesses have hired vendors to operate toll-free telephone services that take complaints and forward them to management, Carothers said, noting that small companies are just as much at risk as larger companies.

Managers can Be Held Liable

Most sexual harassment complaints in the workplace involve a manager and an employee working under that manager.

Tightening the laws about sexual harassment over the years has helped bring the issue to the fore.

Supervisors have become much more aware of the potential cost of harassment, Carothers said, because they can be held individually liable if complaints lodged against them by subordinates are successful in court. Even a manager’s personal assets, such as home equity, can be at risk.

“This has created a lot of anguish in the workplace,” he said, and “can cause sleepless nights.”

The anguish can be even greater because the employer doesn’t have to pay to defend the manager.

California law requires all businesses, however, to train their managers once a year in a classroom setting on their obligations in the workplace, Carothers said.

“The goal is to make supervisors more aware of their conduct and avoid harassment situations,” he said.

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