Workplace harassment is one of many areas where California employers have additional legal obligations than employers who operate exclusively in other states. California has more protected classes, more employers are covered, and there is a greater level of liability for peer harassment, for example.
In a CER webinar titled “Employers’ 2012 California Compliance Update: Breaks, Harassment Training, and More,” Margaret Grover and Kristianne Seargeant outlined further details of these differences.
Workplace Harassment and Discrimination in California: State-Specific Protected Classes and Characteristics
Regarding workplace discrimination and harassment, “as in many other areas, California has additional protections that most states do not have.” Grover noted during the webinar. For example, California regulations go further than federal regulations by protecting more groups of people. Here are some California-specific protected classes/characteristics (in addition, of course, to the federally-protected classes/characteristics):
- Sexual orientation
- Sexual identity
- Disabled (there is a higher level of disability protection in California; the definition of disability is even more lenient)
- Genetic characteristics
- Marital status
- Perception of membership in a class (for example, someone who is thought to be of a specific national origin, but is not, cannot be discriminated against based on that assumption)
- Close association with class member
Workplace Harassment and Discrimination in California: Unique Issues
Beyond state-specific protected groups, there are other unique legal issues in California when it comes to workplace harassment and discrimination. Grover gave us some examples during the webinar:
- “Smaller employers are covered than are covered under federal law, particularly on our disability [laws].”
- There are no damage caps: federal damage caps don’t apply during jury trials in California.
- “Strict liability for supervisor harassment. Even if a supervisor makes a couple of inappropriate sexual comments [for example], you will find yourself unable to get out of that complaint, even if, once the company knew about it, they did an investigation and fired the supervisor…It’s zero-tolerance , and most California employers are very strict on zero tolerance. This is true for sexual harassment as well as harassment under any of the protected bases…”
- The company may be liable for harassment by peers if they knew or should have known.
- The company may also be liable for non-employee harassment if they knew or should have known.
- “California courts have rejected the Faragher-Ellerth defense, which basically says if you have a means of protecting employees against harassment, and, once you learn of harassment, you take active steps and appropriately handle the complaint, that’s an affirmative defense.” This defense is not upheld in California.
- There is, however, an affirmative defense that can eliminate some or all of the damages in cases where the employee could have mitigated damages by complaining and did not.
- “In California our code says that employers have a duty to prevent discrimination and harassment.” (These are easier to defend if the employer has a written, distributed policy, a record of supervisor training, and a history of taking action.)
- “In California we also have a duty to affirmatively train supervisors on identifying and preventing sexual harassment. The training has to occur every 2 years, it has to be interactive, [and] it has to be 2 hours long. If the person is promoted to a supervisory position or hired into a supervisory position and they haven’t been trained at their prior job (or they can’t prove that they’ve been trained), you have to make sure that they have training within 6 months.”
- In California there is also a duty to investigate complaints. Your investigation scope should be aligned with the facts of the situation.
- “In California we have a statutory obligation to engage in an interactive discussion whenever an employee requests an accommodation.”
Just knowing your workplace harassment and discrimination liabilities in California – and how they differ from federal obligations – is the first half of the battle. Now you can take steps to be better prepared!
To register for a future webinar, visit CER webinars.
Attorney Margaret J. Grover practices employment law in the California-based law firm of Kronick Moskovitz Tiedemann & Girard. Her areas of emphasis include personnel policies and procedures, human resources and employment consulting, workplace training and investigations, employment litigation, and alternative dispute resolution.
Attorney Kristianne T. Seargeant is an associate at Kronick Moskovitz Tiedemann & Girard. Practicing in the firm’s labor and employment law department, she represents both private and public sector clients with such matters as employment litigation, collective bargaining, arbitrations, administrative agency appeals, in-house training, and general advice and counsel.