Forming Discipline Policies

Workplace sexual harassment is a severe problem. Intense psychological and legal issues can arise when an employee faces sexual harassment. Therefore, it is critical to avert it altogether as an employer or employee.

As an employer, the law requires you to form discipline and anti-harassment policies to protect your workers. As an employee, you can, too, prevent sexual harassment by remaining self-aware of your environment and reporting sexual harassment incidents. You also have the right to sue your harasser for damages.

If you need help forming discipline and anti-sexual harassment policies for your company in San Diego, CA, we at Empower Sexual Harassment Attorneys can help you. We will help you build strong policies to protect your company from sexual harassment claims. And if you have faced workplace sexual harassment as an employee, we will help you fight for the justice you deserve. Call us now for a complimentary and confidential consultation.

What Does Sexual Harassment Mean?

The main challenge regarding workplace sexual harassment is that most people do not know how to define the term. Many people consider sexual harassment as just sexual advances and sexual favor requests. Even though these acts count as sexual harassment, the word means more than that.

The EEOC (Equal Employment Opportunity Commission) and FEHA (Fair Employment and Housing Act) provide the legal definition of sexual harassment. They define it as any sexual conduct that leads to an intimidating, hostile, or offensive work environment. Some acts the law classifies as sexual harassment include the following:

• Unwelcome sexual advances or propositions.
• Verbal sexual comments, including graphic comments about an individual’s body. These comments also include letters or notes, obscene invitations, and sexually degrading comments.
• Offers of better treatment at work, benefits, promotions, or employment in return for sexual favors.
• Derogatory slurs, jokes, epithets, or comments,
• Giving or displaying sexually suggestive pictures, drawings, cartoons, objects, or posters.
• Leering and making sexual gestures.
• Unwelcome physical contact. These include back rubs, pinching, and butt pats. They also include intentional brushes against different body parts.
• Discussions of sexual activity.
• Threats to cut pay rates, benefits, or hours if a party declines a sexual advance or request.
• Retaliation, like loss of benefits or employment, after filing a sexual harassment complaint.
• Blocking or impeding a person’s movements.

The above conduct collectively constitutes sexual harassment. Courts in California do not consider an isolated incident as sexual harassment. However, a single severe incident that is severe enough can qualify as sexual harassment.

Additionally, both women and men can fall victim to sexual harassment alike. This is contrary to the popular opinion that sexual harassment refers to a male harassing a female worker. Sexual harassment between workers of the same sex also counts. The law does provide equal protection for all workers from sexual harassment, irrespective of their gender identity or gender.

Title VII of the Civil Rights Act of 1964 forbids sexual harassment at the national level. At the state level, FEHA is the primary law addressing workplace sexual harassment in California. Both FEHA and Title VII recognize sexual harassment as a type of employment discrimination. These laws divide sexual harassment into two categories:

• Hostile workplace environment.
• Quid pro quo sexual harassment.

Hostile Workplace Environment

Hostile workplace environment harassment occurs when the abusive conduct is so severe that it:

• Changes the employment conditions to a great extent.
• Creates a hostile, offensive, or intimidating atmosphere.
• Unreasonably interferes with work.

Remember, you can fall victim to a hostile workplace environment even when the offensive conduct is not directly directed at you. If, for example, a colleague makes lewd jokes and remarks in your presence, it can qualify as a hostile workplace environment. The same is true if they watch porn on their computers in your presence. A single appalling act could be considered serious enough to become illegal. On the other hand, less severe conduct may be illegal if it is repeated over a given period.

The lawful evaluation of sexual harassment based on a hostile workplace environment entails subjective and objective elements.

Objectively, the conduct must be one that any reasonable individual would find abusive, hostile, or offensive, as the victim did. At the same time, there should be evidence to show the conduct has subjectively led to the victim suffering emotional distress, impacting their capability to do their work or disrupting their peace of mind.

Courts consider various factors when determining if a given conduct was abusive, offensive, and hostile to constitute harassment. These factors include:

• The seriousness of  the conduct,
• Its frequent occurrence, and
• The circumstances under which it happened.

Generally, these considerations are fact-specific, keeping in mind the unique facts of every case.

Quid Pro Quo Sexual Harassment

Quid pro quo is a Latin word meaning “something for something” or “this for that.” it represents the idea of a form of transaction. For sexual harassment purposes, quid pro quo sexual harassment occurs when someone of higher ranking bases the following on your acceptance of their sexual advances and other types of sexual conduct.

• Continued employment,
• Entitlement to work benefits,
• Advancement or promotion,
• Employment hiring your.

This form of sexual harassment could manifest as an intimidating ultimatum or enticing proposal. For example, a supervisor might threaten the employee with firing if they do not obey their request for sexual favors. Alternatively, the supervisor may tell the worker that they will give them a promotion if they agree to sleep with them. Quid pro quo sexual harassment is considered severe enough that one incident can result in consequences.

Note that the harasser must be in a position to fulfill their threats or promises to constitute quid pro quo sexual harassment. If an employee of the same standing as you threatens to act against you if you do not give in to their sexual advances, it is still sexual harassment. However, this will be classified as a hostile workplace environment and not quid pro quo as they cannot directly retaliate.

Both state and federal laws address hostile workplace environment and quid pro quo sexual harassment. However, there are variations in what they cover. FEHA, for example, covers all state, local, and private employers of whichever size. Title VII, on the other hand, covers only companies with 50 or more workers. Generally, FEHA is deemed more protective of workers. Thus, it is a strong legal framework for fighting workplace sexual harassment.

Forming Discipline Policies for Workplace Sexual Harassment

California’s FEHA forbids employee harassment based on different factors like:

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

It is critical to realize that this list comprises more than harassment contingent on sex or sexual orientation. Thus, if you are experiencing other types of workplace discrimination or harassment, this law can still protect you.

The California Civil Rights Department (CRD) is in charge of probing and prosecuting sexual harassment cases and other instances of workplace discrimination in California. The procedural rules outlined under the state’s Code of Regulations Title 2 provide more regulations governing employers’ duties to keep a place of work that is sexual harassment-free.

Per these rules, an employer has an affirmative mandate to take rational steps to stop and immediately correct harassment. Put otherwise, employers must establish a workplace environment free from sexual harassment or other employment conduct that FEHA prohibits. Additionally, they must establish discipline and anti-harassment policies to punish and prevent retaliation, discrimination, and harassment at work. These policies must:

• Be in writing.
• Outline that the law forbids sexual harassment at the workplace by all parties. This includes managers, supervisors, coworkers, and even third parties.
• Identify protected groups. A protected group is a class of individuals protected from discrimination contingent on a particular shared characteristic.
• Address confidentiality. Elucidate that the disciplinary bodies will maintain confidentiality to the greatest extent, although they may not guarantee complete confidentiality during investigations.
• Obligate supervisor reporting. Direct all supervisors to escalate harassment-related complaints to an appointed representative. These may include a human resource consultant.
• Provide reporting avenues. Include other reporting options for workers apart from reporting to immediate supervisors. These avenues may include an ombudsperson, complaint hotline, or direct contact with EEOC or CRD,
• Specify remedial courses of action. State explicitly that if anyone commits misconduct, the employer will take remedial courses of action.
• Emphasize that there will be no retaliation. State that workers will not be subject to retaliation for participating in an investigation at work. Or they will not face retaliation for bringing a complaint, promoting an environment of openness and trust.
  • Guarantee a timely, thorough, and fair investigation:
  • Ensure due process for any involved party.
• Outline that the responsible discipline bodies will draw reasonable conclusions contingent on gathered evidence.
  • Outline the complaint-handling process:
  • Deal with complaints immediately.
  • Prioritize confidentiality entirely.
  • Assure that a skilled workforce will conduct the investigations.
  • Document the probe, tracking outcomes and progress.
  • Respond compassionately to the person bringing the complaint.
  • Implement proper remedial actions.
  • Ensure timely closure of the complaint.

Employers must guarantee that each worker is conversant with company policy. They can achieve this by giving the employees a printed policy copy. They must accompany the policy with an acknowledgment form, which the employee must sign and send back. Alternatively, employers might opt to send the policy through the mail. In this case, they must also accompany it with an acknowledgment form for the employee to return. Returning the acknowledgment form helps the employer confirm the employee received their copy.

The company can also post an updated version of its policy on its website and attach a tracking mechanism to ensure all workers have read and acknowledged receiving it.

Additionally, companies can hold policy discussions during the following periods:

• During the company’s hiring process.
• During a new worker orientation session.
• Via any other avenues that warrant workers’ receipt and understanding of the company’s policy.

There are employers whose employees include 10% of non-English speakers. In this case, these employers must have the policy translated into the applicable language and provide a copy.

Any employer with 50 or more workers must meet additional requirements. According to Assembly Bill (AB) 1825, these employers must provide California-specific training on sexual harassment to every supervisory worker within the first six months of the employee assuming their supervisory roles. Supervisors must undergo retraining a minimum of once every 24 months. 

A lack of training on sexual harassment does not automatically make an employer liable for sexual misconduct. However, it can affect their defense capabilities. Complainants and their lawyers may assert the employer failed to provide training. However, compliance does not automatically absolve them of responsibility for former, present, or future workers. CRD will issue a compliance order if a company violates what the law mandates.

By failing to train supervisory employees, an employer might find it difficult to argue that they have diligently taken every necessary measure to avert sexual harassment at the workplace.

Enforcing Discipline Policies

Employers must act quickly and objectively to correct inappropriate conduct. They must:

• Conduct an immediate fact-finding probe,
• Hear the accusations,
• Take comprehensive notes,
• Identify all the involved parties.
• Identify witnesses.

The employer should not keep investigation notes in the alleged victim’s personal file. Instead, they should keep it in a distinct file marked confidential. In enforcing discipline policies, the employer should consider:

• Implementing appropriate measures to address sexual harassment allegations.
• Imposing stricter discipline than a simple demand for the guilty party to stop acting inappropriately.
• Imposing disciplinary action that rectifies the perpetrator’s behavior without affecting the victim’s job.
• Imposing discipline that assists in maintaining a workplace environment free from discrimination and harassment.
• Acknowledging that workers involved in severe or pervasive harassment could face termination if their continued employment would cause a hostile workplace environment.

Employers must also provide workers with essential information about sexual harassment at work. They could do this by distributing a copy of  Brochure DFEH-185 to all workers. Or they may generate their own document that must include the following:

• A statement regarding the unlawfulness of discrimination and sexual harassment.
• Sexual harassment definitions per state and federal law.
• Examples to illustrate sexual harassment.
• Details that workers will be safeguarded against retaliation for bringing a sexual harassment complaint or helping in an investigation.
• A breakdown of the company’s internal complaints process.
• CRD contact details.
• The complaints process through the CRD and possible legal remedies.

Concerning sexual harassment training, employers must keep training records and documentation for not less than 24 months. The records and documentation must include the following:

• The kind of training provided (classroom or computer).
• The individual or company that facilitated the sexual harassment training.

The law provides that the person who facilitates training must have significant expertise. Parties that may provide the sexual harassment training include a lawyer who:

• Had been a member of the California State Bar for 24 or more months and
• Practices in a firm whose one of the areas it specializes in is employment law.

Many prudent companies have been offering training on sexual harassment for years. Thus, on the face of it, there appears not to be more to the law than codifying what the employers are already doing. However, the law outlines specific conditions every employer must follow.

Proponents of this law felt that existing laws forbade sexual harassment. However, they did not do much to end the problem, significantly impacting businesses. Employers who wish not to face claims of sexual harassment have been offering training for several years.

As mentioned, AB 1825 applies to employers with 50 or more employees. It also applies to companies that hire 50 or more contactees. These employers must provide the first and continual sexual harassment training to employees per certain quality standards, depending on these topics:

• State and federal statutory provisions on sexual harassment and discrimination prevention.
• Providing remedies for and correcting sexual harassment, discrimination, and retaliation.
• Supervisor instructions and training for averting retaliation, harassment, and discrimination.

Only professional trainers can run training sessions. Employers should monitor these sessions, as they are responsible for averting sexual harassment. The law also encourages companies to provide frequent and better training. The training should be diverse and not stick only to the requirements under the Assembly Bill.

AB 1825 also mandates that every applicable employer equips their supervisors and managers to comprehend their duties under the:

• Discipline policies.
• Complaints procedure.
• Company’s policy.
• Anti-sexual harassment policy.

This knowledge may be provided via routine training. The training must seek to educate employees on the following:

• How serious the employer’s anti-sexual harassment policy is
• The duty of supervisors and managers who come to know about a supposed workplace harassment case.
• The kind of behavior that would break the employer’s anti-sexual harassment policy.
• This kind of behavior would violate the company regulations against retaliation.

It is already clear that employers must provide detailed training on sexual harassment. However, apart from that, they should also offer training on defense against:

• Racism,
• Disability harassment, and
• Ageism.

Training only about sexual harassment may be quite harmful. That is because plaintiffs may assert the company showed little regard for other forms of harassment.

Applying Discipline Policies In Handling Workplace Sexual Harassment

A worker may approach the CRD, EEOC, or both if they have a complaint about workplace harassment. Note that an employee, in this case, includes:

• Salaried workers.
• Hourly workers.
• Interns (unpaid or paid).
• Volunteers.
• Job applicants.
• Contract employees, like freelancers.

Other parties with work relationships with employers can also be sexual harassment victims. These include vendors, customers, clients, et cetera. The complaint from the harassment victim will state facts that corroborate their claim.

The EEOC prosecutes workplace discrimination cases under federal statute, while the CRD prosecutes claims filed under California laws.

Once a victim has filed a complaint, the EEOC or CRD will investigate it and issue the victim a ‘right to sue’ letter. Alternatively, it can take direct action against the company on the victim’s behalf. A ‘right to sue’ letter grants the victim a go-ahead to file a lawsuit in civil court. Damages recoverable if the lawsuit is successful include the following:

• Back pay (past benefits).
• Front pay (future wages and benefits).
• Damages for emotional distress (anxiety and humiliation).
• Lost wages.
• Punitive damages.

Employee Responsibilities In Preventing Sexual Harassment

Employers are not the only parties that need to prevent workplace sexual harassment proactively. Workers, too, must be vigilant and active to encourage a healthy and non-hostile workplace environment.

Workers should strive to familiarize themselves with company policies on workplace sexual harassment. They should then adhere to the laid-down rules. Additionally, employees should remain conscious of their surroundings to look out for sexual harassment against themselves or others.

If a worker faces sexual harassment, they should confront the harasser immediately if it is within their means and safe to do so. Additionally, if they can, the worker should explicitly state that they will report the conduct as it is deemed unacceptable. Likewise, if a worker witnesses a colleague experiencing harassment, they can offer support. The support may mean assisting the victim in protecting themselves and reporting the occurrence to:

• Human resources,
• Their supervisor.
• Their boss, or
• Another department or person.

Employers must take proactive and positive steps to create awareness and avert workplace sexual harassment (through policies and training). On the contrary, the law does not require employees to avert sexual harassment, except to the extent they do not perpetrate it themselves.

Find an Experienced Sexual Harassment Attorney Near Me

Avoiding workplace sexual harassment is a collaborative effort. It necessitates the dedication of both the employer and employees. As an employer, ensuring your workplace culture is respectful helps prevent harassment. Offering routine training and having investigative and reporting procedures also come in handy. Most importantly, you should form discipline and anti-harassment policies to avert sexual harassment incidents.

If your company is in San Diego, CA, we at Empower Sexual Harassment Attorneys can help you devise robust policies to avert or address sexual harassment. We can guide and advise on your legal rights and responsibilities and protect your business against sexual harassment claims. We are available 24/7 and ready to assist you in securing a safe working environment. Call us now at 619-800-7245 for a complimentary consultation.