WORKPLACE LAW -
Providing a Harassment
and Discrimination Free Workplace
Question:
I heard there is some new legal decision regarding an employer’s duty to prevent discrimination and harassment in the workplace. What does the new decision say, and how will it effect employers?
Answer:
Employers in California have a statutory duty to take reasonable steps to prevent discrimination and harassment in the workplace. Some common steps employers take to fulfill this duty include adopting policies prohibiting discrimination and harassment and providing training to employees.
On October 19, 2010, the California Fair Employment and Housing Commission (FEHC) issued a precedential decision in the case of Department of Fair Employment and Housing (DFEH) v. Lyddan Law Group. In that case, the FEHC explained that even if there is no actionable discrimination or harassment in the workplace, the DFEH can find that there has been a violation of the law requiring employers to take all reasonable steps to prevent discrimination and harassment from occurring.
In DFEH v. Lyddan Law Group, paralegal Robin Williams filed a complaint with the DFEH. Thereafter, the DFEH filed an accusation on behalf of Ms. Williams, alleging that Ms. Williams’ boss, attorney Jeffrey Lyddan, engaged in sexual and racial harassment. Specifically, the accusation alleged that Mr. Lyddan made sexual and gender based comments about the female sex and racist comments about various races.
Under California law, an employer may be liable for having a hostile work environment if discrimination or harassment is “severe and pervasive” such that it interferes with a reasonable employee’s work performance, seriously affects the psychological well-being of a reasonable employee, and actually offends the employee. After the initial hearing in the Lyddan case, the FEHC administrative law judge held that Mr. Lyddan’s conduct was not “severe and pervasive” and therefore the employer was not liable for discrimination or harassment.
However, the FEHC held that the employer failed to take all reasonable steps to prevent discrimination and harassment from occurring in the workplace as required by law. This holding was based on the fact that the Lyddan Law Group: 1) did not have a written anti-harassment policy; 2) did not conduct harassment or discrimination prevention trainings for its managers or employees; and 3) failed to conduct an investigation after Ms. Williams complained of harassment and discrimination to Mr. Lyddan via email. The FEHC’s proposed decision ordered Mr. Lyddan to take sexual and racial harassment prevention training to prevent and deter future complaints.
Thereafter, the FEHC requested further argument from the parties regarding liability for failing to take all reasonable steps to prevent discrimination and harassment in the absence of a finding of discrimination or harassment. After considering the parties’ arguments, the FEHC noted that public policy in California requires employers to establish affirmative programs to prevent discrimination and harassment, including prompt and remedial internal procedures and monitoring of the workplace. The FEHC held the employer was liable for the unlawful employment practice of failing to take all reasonable steps to prevent discrimination and harassment.
The FEHC ordered the Lyddan Law Group and Mr. Lyddan to cease and desist from failing to take all reasonable steps to prevent discrimination and harassment, to undergo prevention training at his own expense within 60 days, and to obtain advance approval of the training provider and content. The FEHC noted that the Lyddan Law Group’s small employer status was irrelevant to its determination.
In addition, the FEHC explained that prosecution of an independent violation of the statutory duty to take all reasonable steps to prevent discrimination and harassment is only possible through the DFEH’s police powers, and not through civil litigation. As a result, there is no private cause of action in civil court proceedings for such independent violations.
The lesson from this case is that employers of all sizes must take all reasonable steps to prevent discrimination and harassment in the workplace even if there are no instances of unlawful discrimination or harassment. As a result of this precedential decision, when the DFEH prosecutes a case on behalf of a complainant, employers may be liable for failing to take all reasonable steps to prevent discrimination and harassment, even if the evidence does not support a finding of unlawful discrimination or harassment.
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