Harassment

Harassment

Employers must take responsibility for and understand their liability for workplace harassment. While the law forbids harassment in the workplace based upon any of several types of protected classifications--such as race, religion, and age-over-40--sexual harassment has certainly received the most media attention and is perhaps the most common form of it.

The Fair Employment and Housing Act requires employers to take "all reasonable steps" to prevent sexual harassment against their employees. This includes the duty to address alleged harassment committed by a non-employee, on the ground that the employer had no power of control over a non-employee.

Preventing sexual harassment at the workplace is much easier to do when you have a good understanding of what sexual harassment is. All supervisors and managers have a duty to report possible sexual harassment situations to the company.

All employers with at least one employee is responsible for complying with sexual harassment laws.

Types of Sexual Harassment

There are two definitions of sexual harassment that are important to understand.

Quid Pro Quo: The first type of sexual harassment is called "quid pro quo," which is Latin for "this for that." An employee who expects a sexual favor from another employee and who threatens the employee with termination or loss of benefits if the employee were to reject the request (in other words, "Give me a sexual favor or lose your job") has committed "quid pro quo" sexual harassment.

Hostile or Offensive Work Environment: The second type of sexual harassment is called "conduct based on gender" or "because of gender." The harasser's conduct toward another co-worker creates a hostile or offensive work environment that interferes with the co-worker's job performance. This type of harassment does not threaten the co-worker's job as much as it threatens the co-worker's sense of safety or security.

By law, a company is responsible for investigating all claims of sexual harassment and for investigating the claim quickly.

If the company fails to investigate the claim and correct the situation (if the company determines harassment has occurred), the company may be held responsible for the harasser's conduct.

What is sexual harassment? Here are some examples of various forms:

1. Any unwanted sexual advances.

2. Offering employment benefits in exchange for sexual favors.

3. Making or threatening retaliation after being turned down for sexual favor.

4. Making sexual gestures, leering, displaying sexually suggestive objects, pictures, cartoons or posters.

5. Speaking offensive language, telling offensive jokes, slurs or derogatory comments, or sexual propositions.

6.Verbal abuse of a sexual nature, graphic verbal descriptions about a person's body, sexually degrading words used to describe an individual, or sexually suggestive words, letters, notes or invitations.

7. Physical contact, such as unwanted touching, assault, or blocking movements.

The U.S. Supreme Court has stated that a plaintiff in a hostile-environment sexual harassment suit doesn't have to prove psychological injury to win. The Court determined that the victim must show only that he or she subjectively believed the work environment was hostile or abusive and that a reasonable person would find it similarly hostile or abusive.

An employer may avoid legal liability for sexual harassment by implementing and enforcing a sexual-harassment prevention program. Providing information to employees and training supervisors are important steps in preventing sexual harassment.

In California, employers must give their employees sexual harassment information. Contact the state Fair Employment and Housing Commission or your state or local Chamber of Commerce or agricultural association for pamphlets that meet the disclosure requirements of California law.

At a minimum, new employees should receive the information sheet, and new supervisors and managers should be trained in this area. To avoid liability, employers must make sure that supervisors do not create or allow hostile-environment sexual harassment. Employers who do not already have a training program that educates supervisors about the consequences of sexual harassment to the employer and employees should begin one.

Duty to Prevent Sexual Harassment by Non-Employees

The Fair Employment and Housing Act requires employers to take "all reasonable steps" to prevent sexual harassment against their employees. An appellate court case found that an employer had no duty to address alleged harassment committed by a non-employee, on the ground that the employer had no power of control over a non-employee. The state Legislature amended the FEHA to overrule the case, reaffirming prior interpretations that the employer should do what it can to address harassment by third parties. An employer's ability to deal with the situation is somewhat less than its ability to deal with a situation in which its own employee is the accused harasser, but the employer should still do what it can, such as contacting the harasser's employer and asking it to address the situation.

Federal Requirements

On the federal level, the U.S. Equal Employment Opportunity Commission (EEOC) also enforces prohibitions against sexual and other protected-class-based harassment in employment as well as Title VII of the Civil Rights Act of 1964. An EEOC publication states: "[E]mployers are encouraged to take steps necessary to prevent sexual harassment from occurring. They should clearly communicate to employees that sexual harassment will not be tolerated. They can do so by establishing an effective complaint or grievance process and taking immediate and appropriate action when an employee complains."

Instruct employees and management personnel about the company's sexual harassment policy: Employers can be held liable for harassment of other employees by a co-employee, a supervisor and even a non-employee.

Suggested Steps to Take

To help protect themselves, growers should take three actions. These are:

1. Develop and disseminate a company sexual harassment policy.

2. Instruct employees and management personnel (including forepersons and supervisors) about the company's sexual harassment policy.

3. Assign a high-level employee to oversee the sexual harassment policy.