Feature

by Stephen D. Pahl and Servando R. Sandoval

In an industry like residential property management where men and women work side by side on a daily basis, employers must keep themselves up-to-date on the issue of sexual harassment. Our industry consists of staff working on-site, supervised by an on-site manager, with periodic supervision by a regional manager. This can create special circumstances when dealing with sexual harassment complaints. Consequently, employers in our industry must implement clear policies regarding sexual harassment. In order to understand what sexual harassment is, you need to be cognizant of the latest developments in this area of law and know what to do to avoid any potential liability for sexual harassment.

What is Sexual Harassment?
Both federal and California laws prohibit harassment based on several different categories protected by these laws. Although the anti-harassment laws apply to different protected classes, sexual harassment is the most well-known category. You must keep in mind that sexual harassment does not solely exist in a male-to-female context. The law also recognizes same-gender sexual harassment, as well as female-to-male sexual harassment. Now in California, the law also prohibits discrimination based on gender. This amendment was specifically intended to protect discrimination or harassment based on an individual’s gender identity or perception of the individual’s perceived gender. Ultimately, sexual harassment is a matter of perception—what is innocuous to one may be offensive to another. One must, therefore, be cautious when dealing with all employees.

Sexual harassment is any unwelcome sexual advance, request for sexual favor and other verbal or physical conduct of a sexual nature when submission to or rejection of this conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance or creates an intimidating, hostile or offensive work environment.

There are generally two types of sexual harassment. The first type is referred to as Quid Pro Quo, which refers to a situation in which an employment benefit is given in exchange for sexual favors. The second type of sexual harassment is referred to as Hostile or Offensive Work Environment. A hostile or offensive work environment involves verbal harassment, physical touching or visual harassment. The offensive conduct must be unwelcome, sexual in nature, severe and pervasive.

In California, the law views the conduct from the perspective of the “reasonable woman.” The standard applied by courts is that the conduct must be “sufficiently severe or pervasive to alter the conditions of the victim’s employment” (Fisher v. San Pedro Peninsula Hospital, 214 Cal. App. 3d 590, 609 (1989)). In Fisher, the court set out certain factors to consider when evaluating the totality of the circumstances in determining whether the conduct meets the above-stated standard. The factors examined by the court are

1. the nature of the unwelcome acts or works;
2. the frequency of the offensive encounters;
3. the total number of days over which all of the offensive conduct occurs; and
4. the context in which the harassing conduct occurs.

Sexual Harassment is:

• verbal harassment such as epithets, slurs, name calling, jokes, comments about appearance and questions about personal or sexual practices;
• physical harassment, including assault, impeding or blocking movement, touching, pinching, brushing against another person or requiring an employee to wear sexually revealing clothing;
• visual harassment such as derogatory posters or cartoons in the work place, obscene or insulting letters or emails and
  pictures displayed that are derogatory or sexually suggestive; and
• unwelcome sexual advances, persistent demand for dates, conditioning employment or continued employment, or
  benefits for the exchange of sexual favors.

The above are merely some examples, not an exhaustive list, of what constitutes sexual harassment. All landlords must act before the issue of sexual harassment arises in order to protect against potential liability.

Liability
You must always be aware that, as an employer, you can be held strictly liable for the sexual harassment conducted by your supervisory employees. Given this, you should ensure that your supervisors are always aware of your anti-harassment policy, and are frequently reminded of that policy. The employer can also be held liable for sexual harassment by a nonsupervisory employee, if the employer knew or should have known of the sexual harassment conduct and the employer fails to take all reasonable steps necessary to prevent the harassment from reoccurring. That is why you must act immediately upon learning of any potential sexual harassment conduct.

You should also keep in mind that California amended its anti-harassment statute effective January 2004, making employers liable for sexual harassment by nonemployees. This means that employers can now be liable for sexual harassment if the employer knows or should have known of sexual harassment by a nonemployee and fails to prevent the sexual harassment by nonemployees. In our industry, this means that the employer could be held liable for the sexual harassment of an on-site staff member by a vendor or a tenant, if the employer knows or should have known of the alleged harassment and fails to act. In this circumstance, you must act immediately to ensure that the alleged harassment ceases.

Avoiding Potential Liability for Sexual Harassment
All employers should start by developing and implementing a written policy against discrimination and harassment. This written policy should be included in your Employee Handbook. If you do not already have an Employee Handbook, you should develop one and make sure that you provide a copy to each employee. Your failure to provide a written policy could result in huge exposure to you, as an employer. Thus, the question will not be whether you will be sued for sexual harassment but rather when you will be sued.

Any written policy should clearly indicate the employer’s disapproval of harassment and should include clear instructions to employees on how to
complain of sexual harassment if they feel that they are being harassed. Further, employers should post the required anti-discrimination/harassment posters and distribute the required information sheet regarding sexual harassment as required by California law.

Once a complaint of sexual harassment is received, take all complaints seriously and undertake a prompt, thorough, discreet and careful fact-finding investigation. If inappropriate, insensitive or offensive conduct is found, the employer should take immediate and appropriate corrective action to stop the conduct. This might require transferring employees to prevent any future harassment. Thereafter, the employer must monitor the situation closely to ensure that there is no retaliation against the complaining employee or any participating employee-witnesses. Further, the employer should require all employees and supervisors to undergo sensitivity training, either as a preventative, educational measure for all employees or as part of the disciplinary action taken against the alleged harasser.

By developing and implementing a clear written policy regarding sexual
harassment, an employer can minimize his or her potential liability. In a recent California case, the California Supreme Court held that “in a FEHA [Fair Employment and Housing Act] action against an employer for hostile environment sexual harassment by a supervisor, an employer may plead and prove a defense based on the avoidable consequences doctrine” (State Dept. of Health Services v. Superior Court). In this particular context, the defense had three elements:

1. the employer took reasonable steps to prevent and correct workplace sexual harassment;
2. the employee unreasonably failed to use the preventive and corrective
   measures that the employer provided; and
3. reasonable use of the employer’s procedures would have prevented at least some of the harm that the employee suffered.
   In the end, employers must be sure to understand what constitutes sexual harassment and take all immediate and appropriate actions to prevent and stop sexual harassment.

---

Reprinted courtesy of Apartment Management. The opinions expressed in this article are those of authors and do not necessarily reflect the viewpoint of SFAA or the San Francisco Apartment Magazine. Stephen D. Pahl and Servando R. Sandoval are with Pahl & Gosselin, a full-service corporate, business and litigation law firm. They can be reached at 408-
286-5100, www.pahl-gosselin.com. The information contained in this article is general in nature. Consult an attorney for advice with regard to any specific problem. Copyright © 2004 by Apartment Management. All rights reserved.