California employers must timely respond to, and thoroughly investigate, workplace complaints of harassment, discrimination or retaliation based on protected categories to avoid legal exposure. On July 9, 2018, the California Court of Appeals in Caldera v. Department of Corrections and Rehabilitation, found an employer liable when an employee was mocking a person for having a stutter on more than five, but less than fifteen, occasions over a two-year period from 2006 to 2008. Plaintiff sued his employer after allegedly he was subject to jokes over a two-year period of time. The jury awarded plaintiff $500,000. The trial court, found the jury award excessive, granted a new trial as to damages and both parties appealed.

The Court of Appeal reversed the trial court’s decision to overturn the verdict and reinstated the $500,000 damage award. The Appellate Court opined, since two of the mocking incidents took place in front of several other employees and supervisors, and a psychologist testified that the mocking caused plaintiff to experience psychological disorders, a “totality of the circumstances” analysis indicated that the harassing conduct was severe. Although plaintiff and his witnesses could not remember exactly how many times plaintiff was mocked or when exactly he was subject to any mocking, the Appellate Court determined the employer’s culture supported the jury’s finding that the harassing conduct was pervasive.

Employers must be proactive when confronted with employee workplace behavior and concerns. California jurors and courts simply do not tolerate harassing conduct even when specifically linked to specific individuals who engage in occasional mocking of an employee’s disability. Immediate action must be taken and must include a thorough workplace investigation. Whenever such a concern first arises and comes to the employer’s attention the employer should immediately contact legal counsel as the investigation, as well as the conduct, can give rise to liability.

The information presented is not intended to be, and does not constitute, “legal advice.” Because each situation varies, and only brief summary information is provided here, you should not use this information as a basis for action unless you have independently verified with your own counsel that it applies to your particular situation.

It seems like workplace harassment claims permeate the news. The Weinstein Company, UBER, PBS, the University of Michigan, Congress, Hollywood – diverse companies and businesses, large and small, are receiving harassment claims and, with the advent of the #metoo movement, it is likely such claims will continue to be top of mind for employees and employers. Therefore, every California employer should have a harassment policy that sets forth steps to be taken before a complaint is made and the steps to be taken when a complaint is received.

California law requires all of the following to be included in the policy:

1. Identification of all protected classes. In California this includes, but is not limited to, race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, and military or veteran status.
2. A statement that the policy prohibits harassment by co-workers, supervisors, managers, and third parties with whom the employee comes into contact.
3. A statement that the employer will provide confidentiality, to the extent possible, to those who make complaints.
4. A promise of timeliness in response to complaints, in investigations and in resolution of complaints.
5. A statement that investigations will be conducted in an impartial manner by qualified personnel.
6. A statement that investigations will be documented and tracked for progress.
7. A discussion of appropriate options for remedial actions and resolutions.
8. Identification of personnel authorized to receive complaints with a statement that employees are not required to complain to their immediate supervisors.
9. Instructions to supervisors as to where complaints should be directed and a prohibition of immediate supervisors conducting the investigation.
10. A statement that the employer will conduct a fair, timely, and thorough investigation that provides all parties with appropriate due process and reaches a reasonable conclusion based on the evidence.
11. A statement that the employer will take appropriate remedial actions when there is a finding of misconduct.
12. A statement that retaliation against a complainant is prohibited.

An effective harassment policy, scrupulously followed and enforced, can minimize loss, or even exculpate the company, from the acts of a few miscreants that engage in workplace harassment. Do your policies comply? If not, immediately call your attorney and get this fixed or else. Just look at The Weinstein Company, now seeking bankruptcy protection due to claims arising from workplace harassment.

The information presented is not intended to be, and does not constitute, “legal advice.” Because each situation varies, and only brief summary information is provided here, you should not use this information as a basis for action unless you have independently verified with your own counsel that it applies to your particular situation.