Atwood, Haiman & Westerberg

Legal Topics February, 1999

Sexual Harassment - Employers and Employees Beware
By D. Kent Westerberg
The number of sexual harassment complaints and lawsuits filed throughout the United States has increased every year since the Anita Hill/Clarence Thomas hearings in 1991. Not surprisingly, as the number of cases increases, new factual situations arise presenting new issues for resolution by the courts. In 1998, the United States Supreme Court and the California Courts of Appeal issued a number of significant decisions concerning some unresolved sexual harassment issues which were, and still are, working their way through the courts.
First, in Faragher v. City of Boca Raton (1998) 118 S.Ct. 2275, and Burlington Industries, Inc. v. Ellerth (1998) 118 S.Ct. 2257, the United States Supreme Court ruled, for the first time, that an employer can raise as an affirmative defense to a sexual harassment complaint the complainant's failure to utilize and follow the employer's sexual harassment policy and complaint procedure where the complaintant suffers no tangible job loss, such as termination. This ruling should be encouraging to those employers who already have effective sexual harassment policies and procedures in effect, and should alert those who do not to immediately implement an effective sexual harassment policy and complaint procedure.
Two 1998 California Court of Appeal decisions should also cause some concern for employers and employees alike. First, in Beyda v. City of Los Angeles (1998) 65 Cal.App.4th 511, following similar rulings in Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th 1128, Wellpoint Health Networks, Inc. v. Superior Court (1997) 59 Cal.App.4th 110, Boler v. Superior Court (1987) 201 Cal.App.3d 467 and Bihun v. AT&T Information Systems, Inc. (1993) 13 Cal.App.4th 976, the Court confirmed that not only is the individual harasser's sexual harassment of individuals other than the complainant relevant and admissible at trial to establish liability against both the employer and the employee, as well as punitive damages, but also evidence that a harasser sexually harassed others as well is admissible to establish the victim's claim of a hostile working environment. In other words, if the victim observes or obtains direct knowledge that the harasser has harassed others, the conduct is admissible to support the victim's claim that she was sexually harassed and subjected to a hostile working environment, as long as the victim finds the conduct offensive. Therefore, both employers and employees alike should be concerned about allowing a pattern of sexual harassment to persist, because such evidence can be introduced at trial and can lead to the imposition of punitive damages.
Finally, in Carrisales v. Department of Corrections, et al. (1998) 65 Cal.App.4th 1492, review granted, 79 Cal.Rptr.2d 671, the California Court of Appeal held, for the first time, that coworkers cannot be held personally liable for sexual harassment under the Fair Employment and Housing Act, even though the Court of Appeal held in Page v. Superior Court (1995) 31 Cal.App.4th 1206 and Mathews v. Superior Court (1995) 34 Cal.App.4th 598 that supervisors can be held personally liable. The California Supreme Court has granted review in Carrisales and the much-awaited decision should be rendered within the year. Until the Supreme Court issues its ruling in Carrisales, coworkers should not assume that they will not be subject to legal consequences if they engage in sexual harassment in the workplace. Predictions are that the Supreme Court will overturn the decision.
In any event, employers and employees beware!