WORKPLACE LAW -
Harassment Claims by Temp Workers
Question:
The nature of my business requires that I contract with an outside agency, which in turn provides me with temporary employees on an as-needed basis. I recently learned that one of these temporary workers feels she has been sexually harassed by one of my actual employees. I don’t think I have a legal obligation to do anything about this, do I? I certainly don’t condone harassment in my workplace, but do I have any responsibility to someone who isn’t technically my employee?
Answer:
Yes. Although it may seem that you would not be responsible for addressing a sexual harassment complaint by an individual that you do not consider to be an employee, you do have responsibility for the workers who are placed at your work site. While most employers are aware that they have a legal obligation to protect their own employees from harassing behavior (even when the person doing the harassing is not an employee), many do not realize that a temporary employee who is working in your place of business may also be able to establish a cause of action under the California Fair Employment and Housing Act (FEHA) if you fail to take the proper steps to prevent and address harassment in your workplace.
In the recent case of Sallie Mae Bradley v. Department of Corrections and Rehabilitation, a California appellate court ruled that a social worker who was sent to work at a prison by a temporary service agency was actually a “special employee” of the prison, even though she was not officially on its payroll. This social worker was repeatedly sexually harassed by a prison employee, but the prison’s officials failed to take any action to stop the harassment because they did not believe they had a legal responsibility to do so. The social worker was simply told to protect herself, and was advised to contact the authorities and to obtain a restraining order against the prison employee who was bothering her.
In its decision, the Appellate Court explained that even though the plaintiff social worker did not meet the legal definition of an independent contractor and she was not a prison employee, the fact that the prison supervisors exercised “direction and control” over the social worker meant that she actually was an employee for purposes of bringing a harassment claim under the FEHA. The Court reasoned that because the legislative intent behind the FEHA was to extend its protections to as many individuals as possible, it simply did not make sense to exclude temporary workers who are employed on a contract basis.
In light of the Bradley decision, employers in California should use caution when faced with situations such as yours, where a non-employee is complaining about harassment or a hostile work environment at your workplace that is caused by your staff employees. The Bradley holding would suggest that even a temporary worker who works for you for a short time could still bring a claim against you for sexual harassment if he/she was harassed while in your place of business, especially if it could be shown that you exercised control over his/her work.
The employer’s liability in Bradley was also compounded by the fact that it had failed to take appropriate action when the plaintiff social worker complained about the harassment she was suffering. An employer who becomes aware of harassment in its workplace is required by California law to take “immediate and appropriate corrective action” to end the harassment. This means that once you are on notice of sexual harassment in your place of business—either because of a complaint or because of something you have witnessed or been told—you as the employer must take immediate corrective action that is reasonably calculated to stop the current harassment and to deter harassment in the future.
While there is no specific set of steps that an employer is required to take in these situations, “immediate and appropriate corrective action” almost certainly requires that an employer investigate the harassment complaint, and that it take some sort of proactive measures to actually protect the complaining individual from additional harassment. Simply conducting a “fact-finding” investigation that does not result in a determination of fault, that does not ensure the complaining party’s safety, and that fails to identify what the employer can do to deter future harassment, is not sufficient under the law.
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