A new California appeal court ruling underscores how critical it is to take prompt remedial action when you receive a sexual harassment complaint. The case also addresses co-worker liability for harassment under California law.
Harassment On Business Trip
Lesli McClung, an auditor for the Employment Development Department in Sacramento, was assigned with auditor Manual Lopez to an audit in San Diego. Lopez was the San Diego project’s “lead auditor.” A lead auditor is usually the team’s most experienced auditor but has the same job classification as the other auditors. The lead auditor, in consultation with a project supervisor, formulates an audit plan and instructs the other auditors about their jobs and responsibilities but has no authority over the other auditors’ compensation, benefits, or terms of employment.
During the San Diego trip, Lopez allegedly grabbed McClung’s thigh, repeatedly placed his hand on her lower back, and made a series of sexual remarks to her. While driving past a nude dancing establishment, Lopez reportedly suggested he and McClung dine there, and when she declined he said, “Men have urges, and I’m sure women do, too.” The next day over lunch, Lopez allegedly said, “I’m a Latin lover” and “You don’t like oral sex, is that your problem?”
Complaint Filed, Investigated
When she returned to the Sacramento office a few days later, McClung filed an internal written complaint with the EDD’s Equal Employment Opportunity (EEO) office, asking that Lopez’s workstation be moved away from hers and that she not be assigned to projects with him. She was immediately taken off the San Diego project.
The EEO office then notified Lopez and McClung that it would investigate. Lopez responded that he was going to retire immediately. Because of this, the EDD didn’t relocate Lopez’s workstation, and he was in the office for about one more week before his retirement.
The EEO office investigated and found evidence supporting McClung’s allegations of Lopez’s groping and sexual remarks. It placed a letter about the findings in Lopez’s personnel file in case he sought reemployment. McClung then sued the EDD and Lopez for sexual harassment.
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No Automatic Liability For Employer
A California appeal court ruled that McClung presented sufficient evidence to suggest Lopez sexually harassed her during the business trip. And, said the court, Lopez could be sued for harassment based on a recent amendment to the California Fair Employment and Housing Act making co-workers personally liable for harassment. Even though the harassment in this case occurred before that amendment, the court ruled the law was retroactive.
The court found the EDD wasn’t automatically liable for Lopez’s misconduct because he wasn’t a supervisor. As a lead auditor, Lopez couldn’t hire or fire McClung or control her working conditions, and he couldn’t make decisions without a supervisor’s approval.
Employer Took Appropriate Corrective Action
Because Lopez wasn’t a supervisor, the EDD wasn’t automatically liable for Lopez’s conduct but could be held liable only if it didn’t take immediate corrective action once it was aware, or should have been aware, of the problem.
McClung charged that by not moving Lopez’s workstation as she requested when she filed her complaint, the EDD had breached its remedial duty. But the court said whether an employer has met its remedial duty is determined not by whether it implements all of the corrective steps requested by the victim but by whether its actions stop the harassment and deter future problems. Here, once McClung was removed from the San Diego project, no further harassment occurred and McClung and Lopez had no more contact. Moving Lopez’s workstation would have added little to the department’s remedial efforts because Lopez was mostly out of the office between the time McClung complained and his retirement.
Take Immediate Action
This case is a reminder of the need to take prompt corrective action when an employee complains of sexual harassment. This is true regardless of whether the alleged harasser is a co-worker or a supervisor. If a supervisor is the harasser, you will be automatically liable, but your corrective actions can help reduce the victim’s damages.