Strict Liability for Harassment Is Limited to "Supervisors" Who Can Hire and Fire -- Vance v. Ball State University

When a company is sued for sexual harassment it makes a big difference who the alleged perpetrator is. If the perp is a low level "co-employee," the Company is not responsible for his conduct unless it was negligent in failing to prevent his harassment or in failing to investigate or remedy the harassment after it was brought to light. By contrast, if the harasser is a "supervisor" the employer is strictly liable for his conduct regardless of its diligence or good faith.

In Vance v. Ball State University, the U.S. Supreme Court thus gave employers a big win by using a restrictive standard for who qualifies as a "supervisor" under Title VII. EEOC regulations defined a supervisor as anyone whose workplace authority was sufficient "to assist the harasser explicitly or implicitly in carrying out the harassment." The Court rejected this definition as a "study in ambiguity." Instead, it defined the term to include only those who are "empowered by the employer to take tangible employment actions against the victim."

There are probably three main points worth making about this definition. First, it definitely tightens the standard and, as a result, reduces the number of managers for whom employers will be strictly liable.

Second, this new test is not as unambiguous as the Majority seems to imagine. Large companies often require consensus decision-making and there may be precious few individuals who are individually "empowered" to fire or demote employees. For example, consider a line manager who can give an employee a poor performance review. Another higher-up manager can rely on that negative review to recommend the elimination of the position. An executive VP can act on that recommendation, but only so long as the CEO and head of the HR Department give their permission. Who "had the power" to fire the employee?

Finally, the Vance decision may not have much impact in California, as the state law anti-discrimination statute contains its own definition of "supervisor." The California Fair Employment and Housing Act ("FEHA"), defines a supervisor in much broader terms:

"Supervisor" means any individual having the authority, in the interest of the employer, to hire, transfer, suspend, layoff, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend that action, if, in connection with the foregoing, the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment.

So, at least in California, employers will still be strictly liable for anyone who can control the alleged victim's job assignments or who can "effectively recommend" rewards or discipline.

Internal Sexual Harassment Complaints are Protected by Anti-SLAPP statute -- Aber v. Comstock

California's so-called anti-SLAPP statute, CCP section 425.16 et seq., is a powerful weapon for quickly disposing of lawsuit based on allegations that arise out of free speech or "public participation."   To proceed with such a lawsuit the plaintiff must present admissible evidence establishing that he is "likely to prevail."   Moreover, he must normally make this heightened showing at the start of the case without the benefit of any discovery.  Most lawsuits which are covered by the anti-SLAPP statute fail to survive this rigorous test and are dismissed, which also triggers an obligation to pay the other side's attorney fees.  

In Aber v. Comstock the Califonia Court of Appeal has significantly expanded the reach of the anti-SLAPP statute by extending its protection to purely internal complaints of sexual harassment.  As the court explained:

 Aber argued that her statements to Bush, the Kluwer HR manager, are protected under section 425.16, subdivision (e)(1) and (e)(2), as statements prior to litigation or other official proceedings. Her theory was that the statements were necessary to address a commonly used affirmative defense by an employer in a sexual harassment case—a defense, not incidentally, that Kluwer has in fact asserted against Aber here.  We agree.

As a result, the accused harasser's lawsuit for defamation based on these internal allegations was dismissed under the anti-SLAPP procedure.  Aber thus serves as a cautionary tale to any employer or co-employee who might otherwise be tempted to file a cross-complaint against a sexual harassment accuser -- unless your counterclaim is exceptionally strong on its face it will likely backfire and result in liability for attorney fees under the anti-SLAPP statute.    

California Court Requires Evidence of Same-Sex Harasser's Sexual Orientation -- Kelley v. The Conoco Companies

It is well-settled that an employee may state a claim for sexual harassment even if the harasser is the same gender as the victim.  But it is still mandatory to prove that the harassing conduct was directed at the victim "because of" his or her gender. 

Courts have been fairly willing to infer that any sexually charged comments from a man to a woman are based on her sex.  But when one (presumably heterosexual) man uses sexually charged comments to harass or intimidate another man courts have been much less likely to find that the conduct was "based on sex."

In Kelley v. The Conoco Companies, for example, the Fifth District Court of Appeal recently dealt with a same-sex harassment claim arising out of an incident on a construction site.  The plaintiff's foreman started out criticizing his technique for tying re bar and then proceeded to unleashed a slew of gay-sex themed comments about how he was going to make the plaintiff his "bitch," etc.  I won't repeat all the graphic comments, but if your into that kind of thing you can see them here.     

Despite the sexual nature of the comments, the Court upheld the grant of summary judgment on the ground that the Plaintiff had presented no evidence that the comments were "based on sex."  As the Court explained:

 The statements made to Kelley were crude, offensive and demeaning, as it was evident that they were intended to be. No evidence, however, was presented from which a reasonable trier of fact could conclude that they were an expression of actual sexual desire or intent by [the harasser], or that they resulted from Kelley's actual or perceived sexual orientation. The mere fact that words may have sexual content or connotations, or discuss sex is not sufficient to establish sexual harassment. While the use of vulgar or sexually disparaging language may be relevant to show discrimination, it is not necessarily sufficient, by itself, to establish actionable conduct. 

The Court went on to hold that in a same-sex harassment case a plaintiff must present "evidence that an alleged harasser was acting from genuine sexual interest" in order to raise "an inference of discrimination because of sex."

The Court's ruling seems problematic in several regards.  First, I don't see why the Court is so certain that a reasonable jury could not question the sexuality of a male who told another man he wanted to have sex with him. 

Second, to avoid summary judgment the Court's rule would apparently require plaintiffs to do pre-trial discovery and present evidence on the "genuine sexual interests" of the harasser.  One can only imagine the problems this rule will cause in practice.  Will plaintiffs be required to do discovery on a harasser's past sexual partners?  Will alleged harassers be required to undergo court ordered mental exams to ferret out evidence of repressed homosexual tendencies?

The Kelley Court also acknowledges that it creates a split with the Second District's 2006 opinion in Singleton v. United States Gypsum Company, which held that no evidence of a same-sex harasser's homosexuality is required.  Thus, this is an issue that may well be headed to the California Supreme Court.

 

Professor Boycotts Sexual Harassment Training

Under California law, employers with more than 50 workers are legally required to provide sexual harassment prevention training to their supervisory employees.  

An interesting Op-ed piece appeared in the Los Angeles Times last week by Alexander McPherson, a tenured UCI professor, who is refusing to attend his employer's mandatory sexual harassment training.  He is basically a "conscientious objector" who is boycotting the sessions on moral and political grounds.  As he explains: 

First of all, I believe the training is a disgraceful sham. As far as I can tell from my colleagues, it is worthless, a childish piece of theater, an insult to anyone with a respectable IQ, primarily designed to relieve the university of liability in the case of lawsuits. I have not been shown any evidence that this training will discourage a harasser or aid in alerting the faculty to the presence of harassment.

What's more, the state, acting through the university, is trying to coerce and bully me into doing something I find repugnant and offensive. I find it offensive not only because of the insinuations it carries and the potential stigma it implies, but also because I am being required to do it for political reasons. The fact is that there is a vocal political/cultural interest group promoting this silliness as part of a politically correct agenda that I don't particularly agree with.
 

I have to agree with Professor Alexander that there is something vaguely un-American about a state-compelled "re-education" program that aims to teach adults how they are supposed to speak and act.  But even if there were no law on the books it would be a very legitimate goal for any employer to prevent lawsuits and improve morale by preventing harassment.  Also, since everyone is required to take the training I don't quite follow the argument that it communicates some sort of "stigma."

According to the piece, the University has responded to Professor Alexander's boycott by taking away some of his staff and lab resources.  This raises a clear conflict between the professor's political speech rights (which are themselves protected under California law) and the harassment training law. 

This conflict piqued my interest enough to review the actual language of the "mandatory" training statute, California Gov't Code section 12950.1(a).  Interestingly, it doesn't actually require the professor to attend the training.  The statute merely requires that the employer "provide at least two hours of classroom or other interactive training and education regarding sexual harassment."   As illustrated by the recent debate over what it means to "provide" meal and rest breaks to employees, the word arguably requires only that the employer make the training available. 

Thus, the University has discharged its duty to "provide" the training by making it available.  And the professor's refusal to attend doesn't put him or the University in violation of the law.  So maybe everyone can just let it go and get back to their microbiology research.

    

 

  

California Human Resources Networking Group - LinkedIn

I recently founded the California Human Resources Networking Group in LinkedIn. I’ve found that LinkedIn is becoming more and more popular with human resource professionals as well as legal professionals, so I created the group in order to promote HR related discussions specific to California.

To join, visit the California Human Resources Networking Group page in LinkedIn, or drop me an email and I will approve your request. There are no particular qualifications required to join - only a need for a better understanding of California's employment laws.

The group is devoted to discussing questions about human resource and other employment law issues that arise in California.

If you know of anyone else that would find the group beneficial, please send them to the group.

To get things started, I will be conducting a free webinar for the group in early October on how to use the Internet to conduct background checks on applicants and/or employees without creating liability for your company. More information to come.
 

Five Common Mistakes In Sexual Harassment Policies

Rush Nigut wrote recently about five common mistakes he see employers make in drafting sexual harassment policies.  Rush makes very good points, here are a few highlights:
  • The written policy does not provide and communicate in writing multiple channels for the complaint procedure. Employees should be able to report harassment to more than one person within the company. The complaint process should be clearly defined in your employment manual.
  • Supervisors are not trained each year and supervisors are not required to report harassing conduct. Consequently employers often miss out on a possible defense in any lawsuit.
  • Once notified of harassing conduct employers fail to take immediate action to investigate. Employers have the attitude that the employee must "deal with it." Complaints of harassment are often not taken seriously.
Rush's post is a good reminder for employers, and the entire post can be read here.  Don't forget, California employers with 50 or more employees must provide two hours of sexual harassment prevention training to their supervisors and managers every two years.  This requirement started in 2005.

Catholic Clergy Settlement Highlights Issues of Vicarious Liability for Sexual Abuse and Sexual Harassment

The long-running tragedy of the Catholic clergy abuse scandal has, by now, become a lurid fixture of our popular culture. (On a non-sectarian note, a large number of abuse cases are pending against Protestant clergy as well). The recently announced $660 million dollar abuse settlement by the Los Angeles Archdiocese has once again put these cases in the media spotlight. 

Yet, despite their religious context, these clergy abuse claims are not unlike the lawsuits for sexual harassment routinely faced by California employers. At their core, all such claims are premised on the allegation that the employer (whether secular or religious) should be held liable for the bad acts of its employees (or other agents). Thus, aside from the threshold question of whether the misconduct actually occurred in the first place, employer liability in the secular realm will turn on the same set of questions:

  • Was the misconduct closely related to the workplace or the employee’s job duties?
  • Was the employee a supervisor or highly placed manager?
  • Did the employer have advance notice that the employee could pose a risk to others? 
  • Did the employer take reasonable steps to prevent the employee’s misconduct before it happened? 
  • Did the employer investigate and discipline the wayward employee, or did it implicitly “ratify” the conduct after-the-fact by turning a blind eye?

Depending on the answers to these questions, any California employer could find itself legally liable for an employee’s sexual misconduct. For example, the California Fair Employment and Housing Act (the “FEHA”) imposes strict vicarious liability against the employer for any sexual harassment (which may arise from conduct running the spectrum from offensive language to rape) perpetrated by a supervisor.

In the recent case of Myers v. Trendwest Resorts, Inc., 148 Cal.App.4th 1403, (2007), a California Appellate Court held that “in order for the employer to avoid strict liability for the supervisor's actions under the FEHA, the harassment must result from a completely private relationship unconnected with the employment.” Id. at 1421 (emphasis added). Thus, even where the conduct occurs away from work and outside of working hours, employers are likely to be found liable for supervisor sexual misconduct toward other employees so long as there is even the slightest connection to work.  Id. at 1424. 

An employer may also be liable for the sexual misconduct of its employees toward customers or members of the public if it “knew or should have known” of the danger posed by the employee yet failed to take reasonable steps to prevent the assault or other misconduct from occurring. See Randi W. v. Muroc Joint Unified School Dist., 14 Cal.4th 1066 (1997).

Thus, to avoid the fate of the besieged archdioceses around the country, the same sound advice pertains to any entity with employees – screen your employees in order to avoid obviously bad hiring decisions, have a well-publicized policy against harassment or misconduct, train your employees to identify and report misconduct, and take prompt remedial action rather than attempting to cover up any resulting complaints. 

Confidentiality in Sexual Harassment Investigations

This Business Week article about the human resources so-called confidentiality guideline known as the "Need to Know" standard raises a great point many companies could benefit from. The main topic of the article is how HR professionals may inadvertently (or no so inadvertently) disclose information that they said they would only disclose to people who “need to know.”

However, from a legal perspective, and my mantra during sexual harassment prevention training, is that when an employee complains that they or a co-worker is “uncomfortable” with another employee’s behavior or may be a victim of harassment, the HR professional (or supervisor) cannot and should not promise absolute confidentiality. A company has a duty to investigate any potential harassment, and this duty usually falls upon the HR manager. A proper investigation requires speaking to the victim, witnesses, and usually the alleged harasser as well. This probably also requires the disclosure of information reported to the company by the alleged victim. This is not to say that the company can and should not closely guard the facts of the allegation, but promising confidentiality up front can put the company and HR professional in an awkward position because absolute confidentiality cannot always be maintained.

DOL On-Line Self Assessment For Restaurateurs Employing Minors

The U. S. Department of Labor’s Wage and Hour Division website provides a self assessment tool for restaurants that employ minors. The assessment covers common violations of the Fair Labor Standards Act (FLSA ). Restaurant owners should note that this assessment does not cover California state law items. The assessment covers items that the DOL found in the past to be some of the most common problems encountered in restaurants, and therefore, are likely issues a DOL investigator will look for in a restaurant.

Here is a list of a few of the items covered in the assessment:

Do any workers under 18 years of age do the following:
1. Operate or clean power-driven meat slicers or other meat processing machines?

2. Operate or clean any power-driven dough mixer or other bakery machines?

3. Operate, load, or unload scrap papers baler or paper box compactors?

4. Drive a motor-vehicle on the job?


Do any workers under 16 years of age do the following:
5. Cook?

6. Bake?

7. Clean cooking equipment or handle hot oil or grease?

8. Load or unload goods from a truck or conveyor?

9. Work inside a freezer or meat cooler?

10. Operate power-driven bread slicers or bagel slicers?

11. Operate any power-driven equipment?

12. Work from ladders?

13. Work during school hours?

14. Work before 7:00 a.m. on any day?

15. Work past 7:00 p.m. between Labor Day and June 1?

16. Work past 9:00 p.m. between June 1 and Labor Day?

17. Work more than 3 hours on a school day, including Fridays?

18. Work more than 8 hours on any day?

19. Work more than 18 hours in any week when school was in session?

20. Work more than 40 hours in any week when school was not in session?

21. Do you employ any workers who are less than 14 years of age?

22. Do you fail to maintain in your records a date of birth for every employee under 19 years of age?

Click here to take the entire assessment. At the end of the assessment, there is a rules summary that explains an employer’s responsibility under the FLSA for the issues on the assessment.