"Holiday Harassment--
Employers must combat the heightened danger that exists at workplace festivities "
by Richard S. Rosenberg and Christine T. Hoeffner

Human resources experts report an exponential increase in claims of unwelcome sexual advances during Holiday festivities. As we approach the Holiday season, it is a good idea for law firm managers to be especially vigilant about properly handling these claims. This is especially true since the firm is held "strictly liable" for harassment by its supervisory staff.

Despite a recent Ninth Circuit decision (Brooks v. City of San Mateo (9^th Cir. 2000) _ F.3d __ [2000 Daily Journal D.A.R. 11321]) finding no liability for a single act of sexual assault by a co-worker, it would be a mistake to think that a single act of inappropriate behavior cannot lead to expensive litigation and liability. Employers are legally obligated to take prompt remedial action for each act of harassment, and must be able to prove that procedures were in place to prevent the behavior from occurring in the first place.

Employers often make the mistake of giving insufficient attention to complaints involving single acts of harassment. Such a response can drive an offended employee into a lawyer's office and raise the bar for liability. Even Brooks confirms the benefits of prompt remedial action, finding the employer in that case not liable for the harassment. Thus, the deciding factor in whether the firm gets sued is often how well the firm responds to a claimed sexual harassment event.

As a result, the firm should consider approaching the issue both from a preventive and remedial viewpoint. Employers have a statutory duty to prevent harassment, which means the firm must show that it tried to deter potential harassers from engaging in such conduct in the first place. Once a claim is made, the firm must take objectively verifiable steps to remedy the harassment and ensure that it does not occur again. Cal. Gov't. Code, ? 12940(i); Intlekofer v. Turnage (9^th Cir. 1992) 973 F.2d 773, 778; Carrisales v. Department of Corrections (1999) 21 Cal.4th 1132, 1140.

These preventive measures will serve the firm well as we enter the Holiday season:

* Formally reaffirm the firm's commitment to its sexual harassment policy before Holiday parties take place. Remind employees that Holiday festivities do not offer an excuse for violating those policies. A well worded letter or memorandum reinforcing the firm's commitment to a professional environment often does the trick. If the firm does not have a written policy, now is the time to implement one.

* Train managers about expected behavior guidelines and how to handle complaints. Harassment education and enforcement must begin with management personnel. "Because the employer cloaks the supervisor with authority, we ordinarily attribute the supervisor's conduct directly to the employer. . . . [t]hus, a sexual assault by a supervisor, even on a single occasion, may well be sufficiently severe so as to alter the conditions of employment and give rise to a hostile work environment claim." Brooks, 2000 Daily Journal D.A.R. at n. 9.

* Make sure all employees understand that your office is not Ally McBeal's. Just because sex-based behavior is culturally tolerated outside the workplace does not mean similar behavior is permitted within the workplace or at office parties. King v. Hillen, 21 F.3d 1572, 1582 (Fed. Cir. 1994). Even though the law only prohibits unwelcome sexual advances, experience shows that when the alcohol wears off people often alter their view of welcomeness. Below is a sampling of the behaviors which have resulted in litigated harassment claims.

- Comments about body parts or sexual prowess. See Zabkowicz v. West Bend Co., 589 F. Supp. 780 (E.D. Wis. 1984); Yates v. Avco, 819 F.2d 630 (6^th Cir. 1987).

- Using sexually derogatory slang or condescending language. See Zabkowicz, 589 F. Supp. 780.

- Conversation of a very personal nature. See Yates, 819 F.2d 630.

- Discussing with a co-worker dissatisfaction with a sexual relationship. See Yates, 819 F.2d 630.

- Sexual advances or propositions. See E.E.O.C. v. Hacienda Hotel, 881 F.2d 1504 (9^th Cir. 1989).

- Repeatedly referring to a woman as "the good little girl", "gorgeous", or "sexy". See Anderson v. Reno, 190 F.3d 930 (9^th Cr. 1999).

- Invitations for drinks, dinner, or inviting oneself to an employee's home. See Yates, 819 F.2d at 638.

- Remarks about a person's clothing. See Harris v. Forklift Systems. Inc., 510 U.S. 17 (1993).

- Remarks about a person's body and putting one's arm around a co-worker. See Faragher v. City of Boca Raton, 524 U.S. 775 (1998).

* Consider limiting alcohol consumption. Some employers have policies against alcohol in the workplace and at business functions. Others just limit it. These policies may assist in preventing some problems. Those firms that allow alcohol consumption should consider procedures for policing consumption and some sort of dial-a-ride program.

* Take prompt remedial measures whenever sexual harassment claims are made.

Every act of sexual harassment - whether by a co-worker or supervisor - should be taken seriously. Prompt action designed to stop any further harassment not only demonstrates that the firm does not condone such behavior, but doing so ought to prevent certain behavior from being imputed to the employer. Brooks, 2000 Daily Journal D.A.R. 11321. The law currently makes the firm strictly liable for a supervisor's misbehavior. In the case of harassment by a co-worker, the co-worker's behavior will be imputed to the firm only if the firm knew about the behavior and failed to take prompt corrective action. Notably, if the firm receives a harassment claim but fails to promptly correct the matter, the firm still faces liability for a co-worker's harassment. Fuller v. City of Oakland, 47 F.3d 1522 (9^th Cir. 1995).

Also, remember that a record of consistently responding well to each and every sexual harassment incident is important because the firm's entire record of dealing with such matters is considered when evaluating liability. In determining whether there is a so-called hostile work environment, the Courts and EEOC assess the employer's record as a whole and the totality of the circumstances. Meritor Savings Bank v. Vinson (1986) 477 U.S. 57, 69. For this reason, the firm should strive to make the very best record possible. Brooks illustrates this point.

Even if the firm is not sued at the time does not mean the firm is home free. One law firm found this out the hard way. Unremedied (or insufficiently remedied) claims can surface in later filed litigation by others who try to string together these unconnected events to show a pattern of insensitivity (or perhaps retaliation). Perhaps the most dangerous situation is where the prior incidents involve the same person. If there is enough of this behavior, and perceived tolerance for it by management, a claim for punitive damages may be well taken (i.e., the firm acted in conscious disregard of the safety and rights of its employees). Weeks v. Baker McKenzie (1998) 63 Cal.App.4th 1128. In Weeks, many of the harassment incidents introduced at trial occurred years before the plaintiff was even hired. The firm's failure to effectively remedy those events, thereby preventing future acts of harassment, was used to establish liability both for compensatory damages and $3.5 million in punitive damages. The court concluded that the plaintiff was a highly foreseeable target of the harassing partner, insufficient steps were taken to prevent her from being harassed, she received no warning of the risk she was taking by working at the firm, and she was not informed of her rights and options if harassment occurred. The law firm was found to have acted in conscious disregard of the safety and rights of the plaintiff because the evidence showed that the partner was accused of harassing at least five other employees before she was hired, and the firm failed to put an end to the behavior and protect her.

* Avoid the perception that the firm would retaliate if a claim is made. Where an employee complains of harassment, the firm should reaffirm to all those who may have knowledge of the complaint that there will be no retaliation for asserting rights protected by law.

* Don't over react. Remember, the alleged sexual harasser has rights too. If the firm rushes to judgment, it may be trading one lawsuit for another. To establish the requisite good cause to terminate the alleged harasser who denies the behavior, the employer should conduct a good faith comprehensive fair investigation. The firm can take action if the firm reasonably believes the accused employee engaged in harassment, even if the evidence is inconclusive. Cotran v. Rollins Hudig Hall Internat, Inc., 17 Cal.4th 93, 108 (1998).

In the end, how these claims are handled is often as important as what happened - both in terms of the original complaint and others that may follow in the future. The last place the firm wants to be is on the bottom of a pile of evidence which can be made to look as though the firm did not take sexual harassment seriously; worse yet is where the firm looked the other way if the accused is a rainmaker or is otherwise important to the firm. Following these suggestions will go a long way toward reducing the incidence of these claims and protecting the firm from liability.