WORKPLACE LAW -
Co-Worker Sued For Harassment

Question:

I just learned that one of my former co-workers has filed a sexual harassment lawsuit against me. When I brought this to my former employer’s attention I was told that a lawsuit had not been filed against the company. I was also told that because of the nature of the allegations my former employer would not defend me in the lawsuit and I would need to hire my own attorney. I was fired as a result of my former co-worker’s false allegations and cannot afford to hire an attorney. I have two questions. First, can a co-worker file a harassment lawsuit against another co-worker and not the employer? Second, is it legal for my employer to refuse to handle my defense?

Answer:

With respect to your first question, this area of the law has been in flux. In the 1999 case of Carrisales v. Department of Corrections, the California Supreme Court held that the provisions of the California Fair Employment and Housing Act (FEHA) do not impose personal liability for sexual harassment on nonsupervisorial co-workers. In response to this decision, the California Legislature enacted California Government Code Section 12940(j)(3) which provides that co-workers can be held “personally liable for any harassment…perpetrated by the employee, regardless of whether the employer…knows or should have known of the conduct and fails to take immediate and appropriate corrective action.” As a result of the addition of this section to FEHA, it is now clear that co-workers can be held liable for sexual harassment. This is true even in situations where the employer is not liable for the accused co-worker’s conduct because it did not know or have reason to know of the conduct.

With respect to your second question, California Labor Code Section 2802 provides that an employer must indemnify employees for all necessary expenditures or lawsuits incurred as a direct consequence of the discharge of the employee’s duties.

The California Fair Employment and Housing Commission defines sexual harassment as unwelcome sexual advances, request for sexual favors, and other verbal, physical, or visual conduct of a sexual nature where (1) submission to such conduct is made an explicit or implicit term or condition of employment; (2) submission to or rejection of such conduct is used as the basis for employment decisions affecting an individual; or (3) such conduct has the purpose or affect of either unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive work environment. As such, the types of conduct that form the basis of a sexual harassment claim are generally not the types of conduct an employee would engage in the direct consequence of the discharge of his or her duties. For this reason, it is not uncommon for an employer to refuse to provide an employee with a defense in situations such as yours.

We suggest that you retain the services of an attorney as soon as possible both to defend you in the lawsuit and to ascertain whether there is a basis to compel your former employer to participate in the defense of this claim.
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