Finding the Facts - Disciplinary and Harassment Investigation

Under the FEHA, an employer may be liable for sexual harassment committed by a non- employee. Liability may exist if the employer, or the employer’s agents or supervisors, know or should have known of the non-employee’s harassing conduct, and fail to take immediate and appropriate corrective action. To determine liability, a court will consider the extent of the employer’s control over the non-employee, and any other legal responsibility for the non- employee. The FEHA also creates liability for failure to prevent sexual harassment if an employee proves a claim of harassment and also proves that the employer failed to take all reasonable steps necessary to prevent harassment from occurring. 179 In a 2017 Ninth Circuit decision, the federal appellate court reversed a district court’s ruling granting summary judgment – in part – because a jury could reasonably conclude that the employer failed to take effective remedial measures. 180 Employee was allegedly harassed by a higher ranking employee with racially disparaging comments. After employee made verbal and written complaints, management initiated an investigation into the allegations. Ultimately, the company adjusted alleged harasser’s schedule so that he and the employee would not work the same shift. A short time later, employee arrived to work and learned that the alleged harasser was also on site and so immediately left the premises. The Human Resources Supervisor advised employee (and his son) that the harasser would sometimes be on site with them – noting that the harasser was instructed not to have any contact with them unless an emergency arose, directed them to do the same, and asked whether they would complete their shift that day with the harasser on the premises. Employee refused to work at the same time as the harasser and was terminated shortly thereafter. 181 The Court found that while employer may have acted promptly in investigating employee’s complaints, a jury could reasonably conclude that it failed to then take effective remedial measures. For example, employee alleged that the harassment continued even after he filed a verbal complaint and management met with the alleged harasser to address the issue. In addition, despite initially separating the men, employer later had them work at the same time.

This case is an important reminder that an district’s failure to promptly and effectively stop harassing conduct can create liability. Simply investigating a complaint is not enough; the employer must also take remedial steps to resolve the harassment and prevent it from continuing.

LCW Practice Advisor

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