Effective Harassment Prevention for Employers

Employers in California have an affirmative duty to take reasonable steps necessary to preven and promptly correct discriminatory and harassing conduct. Employers must create a work environment free from prohibited employment practices(1).

2019 Legislation: https://hrcalifornia.calchamber.com/cases-news/2019-new-laws#:~:text=At%2DWill%20Employees-,Effective%20January%201%2C%202019%2C%20employers%20are%20now%20protected%20from%20defamation,Providing%20References%20for%20Former%20Employees.

These reasonable steps in preventing harassment include an obligation to inform employees about their protections against harassment in the workplace, including:

  • Complying with posting and notice requirements
  • Creating and distributing anti-harassment policies for employee handbooks
  • Providing training
  • Ensuring that an effective compliant mechanism is in place and that employees are aware of the process
  • Conducting Investigations
  • Correcting and remedying any harassment in the workplace, including taking steps to prevent future acts

Whether an employer has met its duty to take reasonable steps to prevent and correct harassing conduct will be examined individually, on a case-by-case basis, looking at many factors that sometimes are unique to the particular employer(2).

These factor may include, but are not limited to:

  • Workforce size
  • Budget
  • Nature of the business
  • The facts of a particular case

Take your prevention obligations seriously. A strong effort to prevent harassment can:

  • Prevent unlawful conduct from occuring
  • Help you avoid or decrease liability; and
  • Make the workplace a comfortable environment for everyone.

An employee cannot sue for failure to prevent harassment as a “stand-alone” claim. Instead, the employee must also have a valid underlying claim of discrimination, harassment or retaliation. However, the DFEH can independently seek non-monetary preventative remedies for a violation of the duty to prevent, regardless of whether the employee has prevailed on an underlying claim (3). For instance, the DFEH could mandate the employer to take preventative steps such as training or implementing new policies and practices.