California Harassment Law: Employer’s Duty to Prevent

Once the employer knows or should know about sexual or other harassment, it has a duty to take immediate and appropriate corrective actions to end it. The employer’s response to harassment complaints against a particular employee or a supervisor must be reasonable calculated to end the harassment. This of course doesn’t mean that an employer has to terminate the alleged harasser’s employment upon receiving a complaint of harassment. A warning, reprimand, mandatory harassment training, suspension or administrative leave are some of the remedies available to an employer which may prevent further harassment and remind the harasser of the consequences of his actions.

However, conducting an investigation of harassment but taking no steps to protect employee from further harassment will not insulate an employer from liability. And if earlier discipline did not end the harassment, a more severe discipline is required. In Intlekofer v. Turnage (9th Cir. 1992) an employer was held liable when harasser, who had been verbally counseled once, repeated his harassing conduct, but employer did not take sufficient additional steps to prevent and/or remedy harassment.

Although the necessary response varies with each case, typically, an employer should:
* Take the complaint seriously;
* Do nothing that penalizes or stigmatizes the complainant or otherwise discourages the employee from complaining;
* Investigate the complaint;
* Interview the complainant, the alleged harasser, and any necessary witnesses;
* Communicate with the complainant as to the progress and conclusions of the investigation.