When Is Sexual Harassment a Workplace Issue?

A California court recently ruled that an employer was not liable for a supervisor who sent lewd videos and images to an employee. It made this finding based on the friendship of the two workers outside of the employment setting. In this newsletter, we will delve into when sexual harassment is a workplace issue.  

Sexual Harassment under California’s FEHA 

California’s Fair Employment and Housing Act (FEHA) prohibits ‘sexual harassment’, which is defined as “unwanted sexual advances or visual, verbal or physical conduct of a sexual nature”. Certain behaviors are specifically defined as prohibited sexual harassment, including:  

• Leering, making sexual gestures, displaying of sexually suggestive objects or pictures, cartoons, or posters.  
• Making or using derogatory comments, epithets, slurs, and jokes. Verbal abuse of a sexual nature, graphic verbal commentaries about an individual’s body, and sexually degrading words used to describe an individual. 
• Touching, assault, impeding or blocking movements.  
• Offering employment-related benefits in exchange for sexual favors.  
• Making or threatening retaliation following a negative response to sexual advances.  

Note that this is not a complete or exhaustive list.  

You can find more information on the California Civil Rights Department website.  

Strict Liability for Sexual Harassment 

California’s FEHA holds employers strictly liable for harassment by a supervisor in the workplace setting. This means that employers may be (and often are) held liable for a supervisor’s behavior even if the employer did not know about it.  

Why Was the Employer Not Liable in Attila v Rite Aid Corporation et al? 

In this case, the court held that the supervisor and the employee had a longstanding friendship outside of the employment context. As a result, it determined that the sexual harassment was not work-related, and the supervisor was not acting in his capacity as a supervisor when he sent the text messages. 

Some of the facts that led the court to this decision include:  

• The supervisor sent the lewd video and image to the employee late at night following a lengthy text message exchange that was unrelated to work. 
• The friendship between the two parties predated the employee taking a job as a pharmacist at the chain.  
• The two parties regularly met for coffee, lunch, and special occasions, and they knew each other’s spouses.  

What Does This Finding Mean for California Employers?  

It provides clarity about the scope of the FEHA, including that it does not apply to every situation where two people work for the same employer. 

However, it does not (and will not) excuse every case of sexual harassment between supervisors and employees where the two parties have an existing friendship. It was determined on the facts, and employers should remain vigilant.  

Key steps employers can take to mitigate risk against sexual harassment claims include:  

• Providing proper training to managers and employees.  

• Implementing/maintaining policies to deter personal relationships between supervisors and subordinate employees. 
• Implementing/maintaining a robust anti-harassment policy that is communicated to employees and obtaining acknowledgments from employees of their receipt of the policy. 
• Implementing/maintaining policies that prohibit work-related misconduct. 
• Implementing/maintaining policies and procedures to be followed in the event of a sexual harassment complaint, including a confidential complaint process, swiftly commencing an investigation, offering counseling, and (if appropriate) disciplining or terminating the party who is accused of sexual harassment.  

If you need assistance implementing or updating your workplace policies, reach out. Our employment attorneys would love to help.  

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