Sexual harassment is not a problem of the past. Lately, it seems that not a week goes by without another news report on allegations of rampant harassment at high-profile companies. Most employers are well aware that sexual harassment is unlawful under both California and federal law, but that doesn’t seem to stop the problem from occurring.
An issue that often surfaces during sexual harassment investigations is workplace culture. What tone is being set at the office? Is the office culture one where sexual jokes and banter are okay? When harassment claims are reported, what happens? Are the claims taken seriously or brushed aside?
Keep in mind that California employers have an affirmative duty to take reasonable steps to prevent and promptly correct discriminatory and harassing conduct. Recent amendments to the Fair Employment and Housing Act (FEHA) reinforce this duty.
Plan ahead to manage your organization’s sexual harassment risk.
Stats Tell a Story
Various surveys have reported that one in four women will experience sexual harassment in the workplace. And that number may be much higher.
A Harvard Business Review study of women in industries predominated by men found that 75 percent of women interviewed were subjected to sexual harassment which, more often than not, goes unreported.
The number of sexual harassment claims filed with the federal Equal Employment Opportunity Commission (EEOC) continues to be significant: 6,758 sexual harassment claims were filed in 2016, and almost 17 percent of those charges were filed by men. The EEOC obtained $40.7 million in monetary benefits for victims of sexual harassment.
Statistics from California’s Department of Fair Employment and Housing (DFEH) show that in 2015 DFEH received 4,822 sexual harassment claims. This amounts to nearly one-quarter of the 20,505 complaints received by the DFEH that year.
Harassment Prevention Is Not an Option; It’s California Law for All Employers.
Employers should focus organizational efforts on prohibiting all harassment in the workplace because employers are strictly liable for harassing acts committed by supervisors and can also be liable for harassing acts committed by employees.
A work culture that tolerates harassment not only incurs legal risks but also creates other problems, including:
- An unpleasant environment;
- Decreased productivity;
- Morale issues;
- Attendance problems; and
- Negative publicity and damage to your organization’s reputation and credibility.
Your HR department can assist your company in handling the risk by developing a plan of action to prevent sexual harassment. This is equally true for a small business with the office manager fulfilling this role or a multi-state company with a large HR staff.
Under California law, employers are required, among other things, to establish and maintain:
- A written discrimination, harassment and retaliation prevention policy that includes specific provisions. The mandatory policy must be distributed to all employees with acknowledgment that the employee has received and understands the policy.
- A compliant complaint process, including information on how an employee can bring a complaint, your investigatory process and supervisor reporting obligations. The complaint process must be included in your written policy.
Sexual Harassment Prevention Training
California companies with 50 or more employees are required by law to provide two hours of sexual harassment prevention training to all supervisors within six months of hire or promotion, and every two years thereafter.
CalChamber offers an online, interactive 2-Hour California Harassment Prevention Training making it easy to educate employees and fulfill compliance obligations.
Despite the law being more than 10 years old, some companies are still unaware of their legal obligation to provide the training.
Regardless of company size, harassment prevention training for all supervisors and employees is highly recommended. Training is an essential component of any harassment prevention program — especially when combined with company leadership on these issues. Those at the top level of company management need to not only set the proper tone but also dedicate the necessary time and resources to meet their prevention obligation and ensure that their efforts are effective.
Training shouldn’t focus just on what is unlawful conduct. If you wait until conduct is unlawful, you’ve waited too long! Instead, training should help identify the type of disrespectful conduct that could, if not stopped, lead to a hostile work environment.
Best Practices
- Post the required DFEH poster, which includes information on the illegality of sexual harassment. Employers with 15 or more employees must also post the federal Equal Employment Opportunity poster.
- Distribute a pamphlet on sexual harassment to all employees.
- Make sure you have implemented a that complies with the amended FEHA regulations. A sample policy is also available as part of CalChamber’s Employee Handbook Creator.
- If you have 50 or more employees, ensure your mandatory supervisor training meets California requirements. CalChamber’s online supervisor course meets state training requirements.
- Strongly consider training all employees, not just supervisors, to help meet your prevention obligations.
- Frequently take the pulse of your organizational culture to ensure that disrespectful conduct isn’t given a pass.
Gail Cecchettini Whaley, CalChamber Employment Law Counsel/Content
Want more information? Mandatory Harassment Prevention Training in California is available for nonmembers to download. CalChamber members can also access this white paper on HRCalifornia.
