Failure to Prevent Sexual Harassment

Failure to Prevent Sexual Harassment

Employers can be held liable for failing to prevent sexual harassment, if they should have known about it, or if a supervisor committed the sexual harassment.

• Employer Liability for Acts of its Supervisors and Employees

There is typically strict liability on the employer for the acts of one of its supervisors. Employer liability for the acts of a co-worker (in a non-supervisory position) is also possible if the employer knew or should have known of the ongoing harassment and failed to take immediate and appropriate corrective action. (Gov. Code § 12940, subd. (j).) Once an employer learns of a sexual harassment complaint, an employer has a duty to conduct a prompt and fair investigation to determine whether the complaint is justified.

An employer is required to take all reasonable steps necessary to prevent discrimination, harassment, and retaliation from occurring. If the employer fails to prevent retaliation from occurring, it is independently liable under Government Code section 12940, subdivision (k) (“Section 12940(k)”). (Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th 1128, 1161; Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 287-289).

Evidence of prior acts of harassment and/or retaliation are directly relevant and admissible to establish plaintiff’s claims under Section 12940(k) that defendant failed to prevent harassment from occurring. Liability can attach for merely negligent conduct by the employer. (Weeks, supra, 63 Cal.App.4th at 1158). If an employer’s agents or supervisors fail to take “all” reasonable steps to prevent harassment from occurring, liability attaches. (Id.).

• Employer Liability for Failing to Train its Employees

Employers who do business in California and employ 5 or more part-time or full-time employees must provide at least one hour of training regarding the prevention of sexual harassment, including harassment based on gender identity, gender expression, and sexual orientation, to each nonsupervisory employee; and two hours of such training to each supervisory employee. Training must be provided within six months of assumption of employment. Employees must be trained every two years.