Under California law, employers are “strictly” liable for a supervisor’s unlawful harassment. This means that, unlike harassment by a co-worker, customer, or vendor, if a supervisor subjects an employee to unlawful harassment on account of the employee’s “protected class”, the employer is automatically responsible for the harm done to the employee. An employer may be liable for the unlawful harassment perpetrated against an employee because of his or her “protected class” by a co-worker or a non-employee (such as a customer, client, or vendor) if an employer knows or should have known that a co-worker or nonemployee has harassed the employee and the employer and fails to take immediate and appropriate corrective action. The harasser can be held personally liable for damages.  “Protected class” means the employee’s:

• Race
• Religious creed
• Color
• National origin
• Ancestry
• Physical disability
• Mental disability
• Medical condition
• Genetic information
• Marital status
• Sex
• Gender
• Gender identity
• Gender expression
• Age
• Sexual orientation
• Military and veteran status

California requires employers to take the following actions against harassment:

• Take all reasonable steps to prevent discrimination and harassment from occurring. If harassment does occur, take effective action to stop any further harassment and to correct any effects of the harassment.
• Develop and implement a sexual harass­ment prevention policy with a procedure for employees to make complaints and for the employer to investigate complaints. Policies should include the following provisions:
• Fully inform the complainant of his or her rights and any obligations to se­cure those rights.
• Fully and effectively investigate. The investigation must be thorough, objective and complete. Anyone with information re­garding the matter should be interviewed. A determination must be made and the re­sults communicated to the complainant, to the alleged harasser and, as appropriate, to all others who are directly concerned.
• Take prompt and effective corrective action if the harassment allegations are proven. The employer must take appropri­ate action to stop the harassment and en­sure it will not continue. The employer must also communicate to the com­plainant that action has been taken to stop the harassment from recurring. Finally, appropriate steps must be taken to remedy the complainant’s damages, if any.
• Post the California Department of Fair Employment and Housing’s employment poster (DFEH-162) in the workplace.
• Distribute an information sheet on sexual harassment to all employees.

An employee subjected to unlawful harassment may recover economic damages, emotional distress damages, punitive damages, attorneys’ fees, and costs. An employee may prevail on a harassment lawsuit even if no employment opportunity has been denied and there is no actual loss of pay or benefits.  However, under California law, an employer may minimize the employee’s damages by pleading and proving an affirmative defense called the avoidable consequences doctrine. The avoidable consequences defense has three elements that the employer must prove:

1. the employer took reasonable steps to prevent and correct workplace harassment;
2. the employee unreasonably failed to use the preventive and corrective measures that the employer provided; and
3. reasonable use of the employer’s procedures would have prevented at least some of the harm that the employee suffered.

The avoidable consequences defense will not prevent the employer from being liable (responsible) for the harassment. However, the defense may allow the employer to escape liability for those damages, and only those damages, that the employee more likely than not could have prevented with reasonable effort and without undue risk, expense, or humiliation, by taking advantage of the employer’s internal complaint procedures appropriately designed to prevent and eliminate harassment.

Federal law is not as favorable to employees as California State law (Fair Employment and Housing Act) when it comes to supervisor harassment. First, federal law only protects against very limited forms of harassment – harassment based on an employee’s race, color, sex, religion, national origin, or age. As discussed above, California provides much greater protections. Second, under federal law, with some limited exceptions, an employer is only strictly (or automatically) liable for a supervisor’s harassment if it culminates in a tangible employment action (firing, demotion, decrease in compensation or benefits, or similar conduct).  If the supervisor harassment’s does not result in a tangible employment action, the employer may be able to avoid liability or limit damages by establishing what has become known as the Faragher/Ellerth affirmative defense. This affirmative defense, which the employer bears the burden of pleading and proving, includes two necessary elements:

• The employer exercised reasonable care to prevent and correct promptly any harassing behavior
• The employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise

If the harasser is the president, owner, partner or corporate officer, the employer is strictly liable for the harassment even if there is no tangible employment action.

If you believe that you, a family member or a friend may have been the victim of harassment (by a supervisor) or anyone else, call the Helmer Friedman LLP at 310-396-7714 today. Don’t wait – you may have a valid claim and be entitled to compensation, but a lawsuit must be filed before the applicable statute of limitations expires.