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Beverage Industry News
VOLUME 98, ISSUE NUMBER 33FOUNDED IN 1934
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SEXUAL HARASSMENT, EMPLOYER’S RESPONSIBILITY
It is important for any employer to be aware that, under certain circumstances, he or she maybe held legally responsible for any sexual harassment committed by an employee. This the-ory is often referred to as “vicarious liability,” or “respondeat superior” by Latin-loving attor-neys. The law states that if an employer or its agents or supervisors knows or should haveknown of sexually harassing conduct and fails to take immediate and appropriate action tocorrect it.There are several theories regarding employer liability for sexual harassment in the work-place that an employer must be aware of in order to avoid a devastating lawsuit:1) Harasser as Employer’s
Proxy
Theory:The first theory occurs in a situation where the harasser, the person charged withcreating the abusive atmosphere, is either a sole proprietor, partner, or high-rankingofficer of a corporate employer. In this circumstance, the employer can be held liable forthe harasser’s conduct. It is important to note that under this theory, an employer cannot avoid liability by claiming that they were not aware of the supervisor’s conduct orthat the supervisor’s conduct violated the employer’s anti-harassment policies. Also, anemployer should know that merely persuading the harasser(s) to stop their activities maynot be enough to prevent liability. Under this theory, the best policy for employers toadopt is to immediately take action to make that harassment does not continue after theharassment comes to the employer’s knowledge.2) Hostile Environment Created by
Coworkers
or Others Theory:This second theory actually acts as a shield for the employer against liability if theharassers were the victim’s coworkers, as opposed to supervisors. If the harasser was asupervisor of the victim, then the first theory would apply. But in a situation where thesexual harassment is created by the victim’s coworkers or others, the employer will not beheld vicarious liable. The catch here is that an employer may be held directly liable if itknows of the harassment and fails to stop it. Again, the best employer policy to avoidthis direct liability is to take immediate action to stop the behavior upon learning of asexual harassment allegation.3) Negligence:A third theory that an employer must be aware of is the theory of negligence. Under thistheory, an employer may be held liable for sexual harassment by coworkers if theemployer unreasonably fails to take appropriate corrective action upon learning of theharassment. In this situation, the court is likely to find that by failing to takeappropriate action; the employer essentially adopts the offending conduct as its own,resulting in direct liability.
How to reduce your liability as an employer?
• As an employer, if you have 50 or more employees, you must provide at least twohours of classroom or other effective interactive training and education regardingsexual harassment to all supervisory employees in California.• You must also provide at least two hours of classroom or other effectiveinteractive training and education regarding sexual harassment to all supervisoryemployees within six months of their assumption of a supervisory position.• The training and education required must include information and practicalguidance regarding the federal and state statutory provisions about the prohibitionagainst and the prevention and correction of sexual harassment and the remediesavailable to victims of sexual harassment in employment.• The training must also include practical examples aimed at instructing
INDUSTRY INSIGHT
BY
ALAN FORESTER, CPA, ATTORNEY
WWW.ABCLAWYER.COM 800-464-1040
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