Avoiding mistakes with California's harassment laws

[The following is not legal advice and should not be relied on as such]

Companies in startup, expansion and consolidation phase need to comply with state and federal laws with respect to harassment and discrimination in the workplace. While state laws vary, California’s Fair Employment and Housing Act (“FEHA”) provides a robust set of protections for employees who work in California.

The FEHA prohibits discrimination and harassment on the basis of several protected classes, which includes race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age or sexual orientation. Cal. Gov. Code sections 12940(a), (j)(1). It also explicitly covers discrimination the basis of “military and veteran status,” “genetic information” and “gender expression”. Cal. Gov. Code section 12940(a).

In many respects, complying with harassment and discrimination laws is a matter of common sense, but as the old saw goes, sometimes common sense is not so common. Here are some practices companies can take to mitigate exposure to harassment and discrimination claims.

Put in place an official policy to prevent harassment and discrimination and distribute it to all staff. The policy can be part of the employee handbook, or it can be separately distributed. The policy should describe what an employee should do if they feel that there is harassment or discrimination in the work place, and how to report it.  Proof that an employee failed to take tangible steps to utilize a Company’s complaint procedure may limit a Company’s damages in any harassment claim. Faragher v. City of Boca Raton (1998) 524 U.S. 775, 807; Holly D. v. Calif. Inst. of Tech. (9th Cir. 2003) 339 F.3d 1158, 1177.

The absence of any such policy can work against a company as it may permit an employee to sue on the basis that the Company failed to take reasonable steps to protect him or her from the alleged harassment. Cal. Gov. Code section 12940(k).

Cultivate a mature work place where people feel respected. Work provides dignity and it should be a joy for employees to come to work, learn something new, and earn a living. Part of why harassment and discrimination claims become ugly is because people feel really hurt when the work place is uncomfortable or when they feel disrespected.

Make the workplace zero tolerance for harassment or discrimination. Having litigated both plaintiff and defense harassment cases, we’ve seen both extremes: plaintiffs with very weak cases who blow out of proportion their experiences, and on the other hand, defendant companies that are careless and irresponsible with respect to their legal duties. Companies should study federal and state obligations and ensure proper compliance just as they would with securities or other financial compliance. Under California law, supervisors can be held personally liable (in addition to the Company’s exposure) for failure to prevent harassment, and an employer will be strictly liable for any harassment done by a supervisor. Hope v. California Youth Authority (2005) 143 Cal. App. 4th 577, 588-589.

Do what you can to settle disputes early. Litigating harassment and discrimination cases takes a toll on both sides. They are oftentimes emotionally involved, and litigation can go on for at least one or two years. Plaintiffs and defendants are well advised to try and mediate cases out early. As part of their employment contracts, companies can also insert mediation and arbitration clauses requiring that such disputes be settled quickly and confidentially. Cal. Civ. Proc. Code section 1281.1, 1281; 9 U.S.C. section 3; AT&T Mobility LLC v. Concepcion (2011) 563 U.S.321