Complying with California’s New Reporting Requirements for Employment Related Harassment

Much has been written recently about the changes in California’s sexual harassment reporting requirements. The changes were announced in a recent case decided by the California State Supreme Court, Department of Health Services v. Superior Court.

What Happened?

The case involved Theresa V. McGinnis, who worked for the Department of Health Services (DHS). Ms. McGinnis alleged her supervisor sexually harassed her from early 1996 until late 1997. She did not report the harassment until November 1997, at which point the DHS began disciplinary procedures against her supervisor. Ms. McGinnis then sued her employer (DHS) and her supervisor for sexual harassment and sexual discrimination in violation of California’s Fair Employment and Housing Act (FEHA).

The DHS responded by saying it couldn’t stop harassment that it didn’t know was happening. The DHS argued that it has procedures in place to stop harassment. Because Ms. McGinnis did not report the harassment the DHS claimed it was not liable under California law. The court did not go so far as to say there was no liability for unreported sexual harassment, but it did allow the DHS to defend itself by showing that the employee failed to take reasonable steps to avoid being harmed.

What Did the Court Say?

The California Supreme Court issued a decision that clarified several issues in hostile environment sexual harassment cases:

1. Under California Law, employers are strictly liable for hostile environment sexual harassment by a supervisor. This means that an employer is responsible for the workplace conduct of those they employ as supervisors. If a supervisor harasses an employee, the employer is responsible – whether they knew about it or not.

2. Employers can use the legal doctrine of “avoidable consequences” to defend against a claim for hostile environment sexual harassment by a supervisor by showing:

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

3. When the employer is able to show that the employee, without undue risk, expense or humiliation, could have avoided some or all of the damages suffered by using the preventative and corrective measures, the employer does not have to pay those damages.

Federal Law

Ms. McGinnis brought her claim under California law using the California’s Fair Employment and Housing Act. A claim could also have been brought under Title VII, a federal law. Had the claim been brought under federal law, the result would likely have been different because of Ms. McGinnis’ failure to notify her employer of the harassment. Under federal law, failure to use the employer’s in-place grievance procedures is an affirmative defense to liability not just damages. It is likely the case would have been dismissed.

What Should You Do?

If you or someone you love is subjected to workplace harassment the most important thing for you to know is that the changes announced by the California Supreme Court did notmake sexual harassment on the job legal. Under California Law, sexual harassment continues to be illegal whether you report it or not. But, in order for you to recover damages for workplace hostile environment sexual harassment, you will need to show that you did what you could to avoid or prevent the some or all of the damages you suffered.

If you have been subjected to workplace harassment, you should:

Report: Report the harassment to your employer. Follow the procedures in your employee handbook, personnel policies, or employment manual. If there are no documented procedures for reporting harassment, then contact human resources. If that is not possible, complain to every manager and supervisor you can find and be sure to keep a record of your complaints.

Document: Document all of your efforts to notify your employer of the harassment and keep a record of your employer’s response. Keep a diary with notes of the time and dates of any discussions, incidents, and/or reports filed. Start a file with copies of all reports, letters, or records relevant to your claim. If the harassment consists of offensive photographs or cartoons, confiscate them or take a photograph noting the time and place the photographs and/or cartoons were posted. Keep copies of any performance reports or job evaluations if you are subject to review. Try to obtain a copy of your personnel file before you file your claim. A sudden change in your performance evaluations may be used to prove retaliation.

Damages: Keep a record of all expenses and damages related to the harassment. Damages you may be able to ask for include: back pay, hiring, promotion, reinstatement, reimbursement of out of pocket expenses, front pay, policy changes, training, reasonable accommodation, affirmative relief, and actual damages including damages for emotional distress.

Understanding how the law affects you is perhaps the most important thing you can do to protect your rights when you are the victim of workplace sexual harassment. An attorney experienced in handling employment harassment and discrimination claims can assist you in reporting the harassment and compiling the necessary documentation to prove your claim. The Blackman Legal Group takes pride in its record of helping clients recover for sexual harassment, abuse and molestation.