News & Events - Newsletters
Workplace Wave, June 2004
The following are exerpts from this month's newsletter.
Now More Than Ever – Ensure Meaningful Open Door Practices to Avoid Harassment Risks
It is an all-too familiar situation: During an otherwise routine exit interview, you hear for the first time a litany of complaints about the departing employee's work environment which, if true, would violate your company's anti-harassment policy. The employee says that she didn't feel comfortable raising the issue before, even though she knew that there were multiple avenues of reporting her complaint.
Does the employee's failure to use the company's internal complaint reporting procedures protect the company from potential liability? Not necessarily.
On June 14, 2004, the United States Supreme Court, in Pennsylvania State Police v. Suders, Case No. 03-95, specified the burden of proof requirements under Title VII when an employee quits due to a hostile work environment created by a supervisor. At issue was whether a constructive discharge would amount to a "tangible employment action," thus imposing strict liability or whether the employer could raise the so-called Faragher/Ellerth affirmative defense. The high court held that the employee must first show that the abusive work environment became so intolerable that the resignation qualified as a "fitting response" to the situation. The employer may then raise the Faragher/Ellerth defense by showing that it had a readily accessible and effective policy for reporting and resolving harassment complaints and that the plaintiff unreasonably failed to follow the procedure. However, the defense is not available if the plaintiff quits in reasonable response to an employer-sanctioned adverse action officially changing his or her employment status or situation, for example, a transfer to a position in which the employee would face unbearable working conditions.
Under California's Fair Employment and Housing Act, a slightly different affirmative defense has been adopted by the California Supreme Court in State Department of Health Services v. Superior Court (McGinnis), 31 Cal. 4th 1026 (2003). Strict liability still attaches when the harasser is a supervisor. However, employers may avoid or limit damages for hostile environment sexual harassment by either a supervisor or non-supervisor under the "avoidable consequences" doctrine where:
- The employer took reasonable steps to prevent and correct workplace sexual harassment (by creating a harassment policy and accessible grievance procedure);
- The employee unreasonably failed to use the preventive and corrective measures provided by the employer; and
- Reasonable use of the employer's procedures would have prevented at least some harm to the employee.
The court stressed that this doctrine impacts damages, not liability. It noted that employees are not expected to always report such conduct immediately to the employer through internal grievance mechanisms. It recognized that employees may reasonably fear reprisal, and the employee's feelings of embarrassment and humiliation may even provide a sufficient excuse for delay. In all cases, the employee's conduct will be judged against a standard of reasonableness. To take advantage of the defense, an employer must demonstrate that it adopted an appropriate anti-harassment policy that it communicated to all employees. The jury may consider whether the employer prohibited retaliation for reporting violations, whether the employer's reporting and enforcement procedures protect employee confidentiality to the extent practical, and whether the employer consistently and firmly enforced the policy. Relevant evidence will include anything tending to show that the employer took effective steps to encourage victims to come forward with complaints of unwelcome sexual conduct and to respond effectively to their complaints.
When a plaintiff has not timely reported alleged harassment, the courts will first examine the openness and accessibility of the reporting/grievance procedure and will then look to the employee's explanation for not raising the issue. In a recent federal district court case, Hawk v. Americold Logistics, a worker who delayed complaining about her boss's alleged sexual advances for nine months was not barred from suing when she explained that the delay stemmed from her fear of losing her job, and that her fear had a rational basis. She presented evidence that other employees who had reported complaints had been treated harshly in the past, and management had made comments dissuading employees from making reports. In contrast, a recent California case held that, without more supporting facts, an employee's mere belief that a complaint would be futile was not a reasonable excuse.
Practical Tips:
- The best way to limit exposure to sexual harassment liability is to maintain a work environment where employees feel comfortable enough that they "police" each other and raise issues that are problematic. To this end, carry out an "open door" policy that provides employees alternate, meaningful avenues to report any form of misconduct or violation of company policy.
- Raise employee awareness of their responsibilities under the harassment policies and ensure their knowledge of reporting procedures. If possible, do not limit training to supervisory employees. For proposed legislation on mandatory training, see article below.
- Review and update, as necessary, your written policies and reporting procedures regarding harassment. Make sure that each employee has received a copy along with any updates.
- Conduct a prompt, unbiased investigation and take appropriate remedial action, keeping in mind the appearance of fairness to all employees involved. Investigate all claims --even if they came to light after the employee left the company.
- Recognize that retaliation is a real fear of many employees, despite strong legal protections and employer policies to the contrary.
For more information on how your company can implement an effective preventive policy and limit damages from sexual harassment claims, contact Ms. Topliff at
California Legislature Close to Mandating Sexual Harassment Training for Supervisors
If enacted, AB1825 (Reyes) will require employers with 50 or more employees to provide 2 hours of sexual harassment training to all supervisory employees within one year of January 1, 2005 (unless they have already provided such training after January 1, 2003). After January 1, 2006, employers must provide this training to each supervisory employee every two years. The training must include information and practical guidance regarding the federal and state statutory provisions regarding the prohibition against and prevention and correction of sexual harassment, as well as the remedies available. It must also include practical examples aimed at instructing supervisors in the prevention of harassment, discrimination and retaliation. It must be presented by trainers or educators with knowledge and expertise in the prevention of harassment, discrimination and retaliation. This bill has passed the Assembly and is currently being heard by the Senate Labor and Industrial Relations Committee. Since it has been amended several times, the information above is subject to change. For more information on this bill or to obtain a sample letter to send to the Legislature, contact Ms. Topliff at