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BIN
2009 • ISSUE 3
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Beverage Industry News
VOLUME 97, ISSUE NUMBER 32FOUNDED IN 1934
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SEXUAL HARASSMENT BY A CO-WORKER
Generally Employers can be liable for act of their employees in furtherance of their duties.However, employers should also safeguard their employees from harm including harm by sex-ual harasser.In California, every two years an employer with 50 or more employees must provide atleast two hours of classroom or interactive training and education regarding sexual harass-ment to all supervisory employees. New supervisory employees must receive such trainingwithin 6 months after being hired.This training should include information about the prevention and correction of sexualharassment and the remedies available to victims of sexual harassment in employment. Also,the training should include practical examples of workplace sexual harassment. Just providing this training will not guarantee that an employer will not be held respon-sible for sexual harassment of any current or former employee or applicant, but it will great-ly reduce the chances of liability.There are several theories on which an employer may be subject to liability for sexualharassment in the workplace:1)Harasser as Employer's “Proxy”: A supervisor with a sufficiently high position inmanagement may be treated as the employer's “proxy,” and so his or her abusiveconduct is automatically the responsibility of the employer.2)Quid Pro Quo” Harassment by Supervisors: The employer is vicariously liablewhen a supervisor requests sexual favors in exchange for job benefits. Theemployer can’t avoid liability by claiming that they didn’t know of thesupervisor's conduct or that the supervisor's conduct violated the employer'sannounced anti-harassment policies.3)Hostile Environment Harassment Created by Supervisors: Employers may also beliable for sexual harassment by a supervisor that creates a hostile workplaceenvironment. The employer is subject to liability if a supervisor who hadauthority over the employee created a hostile environment.• It should be noted that the employer is not vicariously liable for hostileenvironment sexual harassment created by the plaintiff's coworkers orother non-supervisors.• But, the employer may be directly liable if it knows of the harassmentand fails to stop it.The legal standard for evaluating the employer's efforts to prevent and correct sexualharassment is whether its actions as a whole established a reasonable mechanism for preven-tion and correction. Although proof that the employer had an anti-harassment policy and/orcomplaint procedure won’t completely insulate the employer from a lawsuit, it will be lookedat as very relevant to whether the employer exercised reasonable care to prevent the harass-ment. Merely persuading known harassers to cease their activities may not be enough if theemployer takes no action to ensure that the harassment stops. Whether a complaint mech-anism is “reasonable” may depend on the employees involved. For example, if your employ-ees cannot speak English, a complaint procedure in English would not be reasonable.Similarly, if you own a company that employs mostly teenagers, your policies and proceduresshould be understandable by the average teenager.Providing training, educating your employees about the laws and the company’s policiestowards sexual harassment, and dealing with all complaints completely and quickly is the bestway to safeguard yourself against a sexual harassment suit.Alan Forester is an attorney, CPA and an expert witness in Alcoholic Beverage ControlLaw. For more information, please visit www.ABClawyer.com or call 800-464-1040.
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Disclaimer: This article is not to be construed as legal advice. Please check with an attorney beforetaking action.
INDUSTRY INSIGHT
BY
ALAN FORESTER, CPA, ATTORNEY
WWW.ABCLAWYER.COM 800-464-1040
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