How to Deal With Sexual Harassment Outside of The Workplace
How to deal with sexual harassment outside of the workplace? It is well-settled law in California under the Fair Employment and Housing Act as well as the California Government Code § 12940(k)
that an employer owes a duty to their employees to prevent harassment
within the workplace. But what if an employee is sexually harassed
off-site yet within a work capacity? This may be a situation where an
employee is not at work but he or she is carrying out tasks or
participating in functions that are work-related. More importantly, are
employees the only individuals who are covered by the law in this area?
What about applicants? In a heavily populated State such as California,
the job market can be fierce and highly competitive, making it difficult
for job-seekers to get their foot in the door. As a result, these
applicants seeking jobs are vulnerable to illegal hiring processes which
promote discrimination and sexual harassment.
In these situations, employers are liable for the acts of their own
employees who posses hiring power and abuse this power. When issues such
as these arise, reaching out to a local Sexual Harassment Attorney is
the best way to find out if further legal action should be taken.
An
employer or organization is responsible for and held accountable for
the acts of their employees whom they have delegated hiring power to
within the workplace. The Court in the case Doe v Capitol Cities, 50, Cal. App. 4th
1038 had to address this issue of just how far an employer's liability
extends in these "off-site" situations. In that case, the plaintiff was
an actor who was applying, or rather auditioning for a role which took
place on a Sunday at the casting director's home. During this encounter,
the plaintiff alleged that he was drugged and gang raped by the casting
director as well as four other men. The plaintiff brought an action
against the employer of the company, inter alia, for violating the
California Government Code § 12940 (h). Under that regulation, it is
illegal for an employer or organization to retaliate against an
applicant or employee because the applicant or employee made a complaint
against the employer or organization for unlawful practices. The action
was brought against the employer who oversaw the casting director
because it was ultimately the employer's responsibility to ensure that
the workplace was harassment-free. In this case, the Court of Appeal
decided that the plaintiff did have a case if he could provide evidence
that his allegations were true, then as a result, strict liability would
be placed upon the employer. This meant that the plaintiff in this case
only had to prove that the acts actually took place and that the
employer was responsible for the casting director's acts, and it did not
matter what the employer knew or was supposed to have known about the
casting director's tendencies. Today, if an employee was in a similar
situation when attempting to apply for a position and was subjected to
such treatment, they should reach out to a Sexual Harassment Attorney to
discuss their case.
But
how could the employer be held liable for what happened at the casting
director's home and on a Sunday? The Court reviewed the facts and
evidence of the case and was able to conclude that the casting director
was acting within his capacity as an employee because he was locating,
discovering, training, and acquiring actors, just as he did to the
plaintiff. Therefore, even though the incident did not occur at the
actual work-site, nevertheless the casting director was acting as an
agent for his boss. Importantly, the Court did take into account that
the incident took place off-site, and it also occurred outside of work
hours. However, the Court found that because the casting director's acts
were so closely related to his position of employment that it did not
absolve the employer of responsibility. Lastly, it is significant to
take note that the plaintiff, in this case, was not an actual employee
of the company when the incident took place. The court also took this
into account that the plaintiff was not an applicant yet decided that
this did not matter and the employer of the company remained liable for
the casting director's behavior. This was because the plaintiff was in
pursuit of employment which placed both the plaintiff and the casting
director in a work-related context.
Here
in California, under the Fair Employment and Housing Act, an employer's
liability for sexual harassment extends to managers, supervisors, and
controllers who foster a hostile work environment. Per Title VII, a
manager is seen as acting for the employer when generating this hostile
work environment, therefore the employer can be held vicariously liable.
Under the California Government Code § 12926(t) and the Fair
Employment and Housing Act, the definition of "supervisor" is much
broader and considers this title to be anyone who has hiring power, a
power to transfer an employee, fire an employee, demote an employee, or
even a power to reward an employee.
Liability
at the federal level is slightly different. In a particular federal
case, an employee was a lifeguard and employed by the city. She brought a
suit against her employer because she felt that she was being subjected
to a sexually charged as well as hostile work environment which was
created by her supervisors. The environment at issue was considered
hostile because the supervisors were causing the particular employee and
other employees to experience unwanted touching. Here the employee made
a claim under Title VII of the Civil Rights Act 1964,
42 U.S.C.S. § 2000e et seq for these acts and the environment imposed
on her as an employee. The Court, in this case, found that the employee
who brought the action had a claim against her employer by extending the
employer's liability to cover the supervisor's acts Faragher v City of Boca Raton (1998) 524 US 775, 807, 118 S. Ct. 2275, 2292-2293. A Sexual Harassment Attorney
would be able to evaluate an employee's case for free if they have a
similar problem at work and may be able to file suit against the
company.
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