Behavior Not Harassment, But Employer Liable For Failing to Prevent

August 18, 2011  |  From HRCalifornia Extra

A decision from the Fair Employment and Housing Commission (FEHC) is a cautionary tale for employers regarding their obligations under California’s anti-harassment and anti-discrimination laws.

Even without any finding that unlawful harassment or discrimination actually occurred, an employee still has the right to bring a claim to the FEHC for failure to take all reasonable steps to prevent harassment and discrimination.

Government Code section 12940 (k) states that it is unlawful for an employer “to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.” The FEHC determined that the Department of Fair Employment and Housing (DFEH) can enforce a “stand-alone” claim for violation of this provision of the Government Code. However, the FEHC expressly did not find that such a claim gave rise to a private lawsuit in civil court. Department of Fair Employment and Housing v. Lyddan Law Group. LLP and Jeffrey Lyddan, FEHC Dec. No. 10-04-P (2010).

Paralegal Alleges Harassment by Partner of Firm

The case was brought by a paralegal, Robin Williams, who worked for Lyddan Law Group. The firm was managed by attorney Jeffrey Lyddan. Williams, an African-American female, claimed that Lyddan made sexually and racially harassing statements and gestures over a six month period.

Williams claimed that Lyddan:

  • Commented that a female job applicant was "young," "cute" and wearing a "little cute skirt"
  • Asked "What kind of name is that?" about an African American employee’s name
  • Called a Hispanic client’s family "wetbacks"
  • Called other clients "bible thumping white trash"
  • Said that an expert’s daughter was "beautiful like all mulattoes" are
  • Made "rapper" hand gestures and mimicked smoking marijuana around African-American employees
  • Referred to a modified Asian built car as a "rice rocket"

Williams also claimed that Lyddan circulated several emails that included jokes about women not knowing how to drive; political commentary that hoped that Muslim’s would boycott a particular airline; a cartoon about a fence along the Mexican border; and a cartoon about a "nagging wife."

No Policies, No Training, No Investigation

On several occasions Williams told Lyddan that his comments upset her and that she felt they were offensive. At one point, she specifically complained to Lyddan in an email saying "you my boss have circulated racist and sexist emails on more than one occasion to your employees, and continued this even when told it was unacceptable." The email also referred to a "culture of harassment" and to Williams’ belief that Lyddan was retaliating against her. Williams concluded the email by saying that she was resigning at the end of the week.

The law firm did not conduct any investigation into Williams’ claims. In fact, the evidence showed that Lyddan used the email from Williams to accuse her of "slander" and immediately terminated her despite her request to stay on through the rest of the week.

The law firm did not have a written anti-harassment policy. It did not even have an employee handbook. None of the employees or supervisors ever received training on harassment or discrimination prevention.

Agency Finds No Harassment Occurs

Williams filed a charge with the DFEH which then brought an accusation against the law firm on her behalf. The accusation was filed with the FEHC, a quasi-judicial administrative agency that enforces the Fair Employment and Housing Act. The FEHC conducts hearings and issues decisions. It has the authority to order remedies, including back pay, actual or compensatory damages (including emotional distress), administrative fines and civil penalties. It can also order injunctive relief, including reinstatement. An FEHC decision can be appealed to the superior court.

The FEHC concluded that Lyddan's conduct, while "inadvisable," did not amount to harassment. The FEHC recognized that Lyddan exercised questionable judgment and lack of sensitivity, but noted that the purpose of the statutory protections is not to create a "civility code" and that not every utterance of a slur will amount to a legal violation. The FEHC found that the conduct did not meet the legal standard because it was not objectively severe and pervasive conduct that interfered with Williams' ability to do her job. Further, most of the conduct was not directed at Williams.

Still Liable for Failure to Prevent

But the FEHC did not let the law firm off the hook. The FEHC ruled that the DFEH may prosecute a "stand-alone" claim for failure to take all reasonable steps necessary to prevent discrimination or harassment in violation of Government Code section 12940(k). The FEHC ruled that the DFEH was entitled to prosecute this claim on Williams’ behalf even though Williams could not prove any underlying harassment.

The FEHC then determined that the law firm violated the requirement in California law to take all reasonable steps to prevent discrimination harassment: (1) the firm did not have a written anti-harassment policy; (2) the firm did not provide anti-harassment training; and (3) the firm did not initiate any type of investigation into Williams’ complaint.

The FEHC did not award monetary damages to Williams. Instead, the FEHC ordered Lyddan to attend sexual and racial harassment training at his own expense. The FEHC noted that though the DFEH could prosecute a claim for failure to take reasonable steps to prevent harassment, the employee was not entitled to pursue a private lawsuit in court.

Best Practices

This decision serves as an important reminder to all employers about their obligations to create a harassment free workplace. Employers should:

  • Make certain that anti-harassment and anti-discrimination policies are in place and that these policies are distributed to all employees. Every California employee must receive a sexual harassment pamphlet at the time of hire and employers should also have a policy in place in their employee handbooks.
  • Conduct mandatory supervisor training every two years as required by law (for employers of 50 or more employees).
  • Consider training all employees about your harassment and discrimination prevention policies. Regardless of whether the law requires you to, providing some type of training will show your commitment to a workplace free from harassment and discrimination.
  • Create a professional work environment. Inform employees that they can be disciplined for unprofessional and disrespectful behavior at work, not just conduct that crosses the legal line. If you wait until the behavior has reached the category of unlawful conduct, you have clearly waited too long.
  • Investigate allegations of sexual harassment to show your commitment to preventing and deterring harassment. Don’t wait for a formal written complaint – verbal allegations, emails and so forth will trigger your obligation to take preventative measures.
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