California Ab1825 Training Kit

Training Kit

California
Mandatory
Training Law
Summary

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CALIFORNIA MANDATORY TRAINING LAW SUMMARY

Does the law apply to my organization?
California requires organizations with 50 or more employees to provide two hours of sexual harassment prevention
training every two years to their supervisors and managers located in California. Additionally, new managers must
receive sexual harassment training within six months of assuming a supervisory position.

What should the content of the training be?
The training must include the following elements:
• A definition of sexual harassment under federal and California state law
• Federal and California state law provisions and case law principles concerning the prevention of unlawful sexual
harassment, discrimination, and retaliation
• The types of conduct that constitute sexual harassment
• Remedies available to victims
• Strategies to prevent sexual harassment in the workplace
• Realistic examples of sexual harassment
• The limited confidentiality of the complaint process
• Resources available to victims of sexual harassment
• The employer’s obligation to investigate
• What to do if the supervisor is personally accused of harassment
• The essential elements of an anti-harassment policy and its utilization

It is a good idea to make sure that your training also includes all the protected categories, not just sex.

How will I deliver the training?
After you have determined what your training will consist of, the next obstacle is to figure out how you will deliver the
training to your managers and supervisors. Luckily, the law is fairly flexible in what it considers “effective and
interactive” training. The training may be deployed in the following ways:

• Instructor-led training should be delivered by an attorney, human resource professional, harassment prevention
consultant, or law professor with at least two years of experience in the field of sexual harassment.
• Online training must provide a link so managers can ask questions. In the context of e-learning, a trainer must be
available to answer questions within two business days after the question is asked.

Copyright © January 2009 • All Rights Reserved • Employment Learning Innovations, Inc. • Atlanta, GA


How will I deliver the training? (continued)
• Webinars are also an acceptable form of training as long as the employer can prove that the manager actively
participated in the session and was able to ask the trainer questions.

No matter how the training is delivered, the instruction must include questions that assess learning, skill-building
activities that assess the supervisor’s understanding of content learned, and many hypothetical scenarios about
harassment.

How will I document the training?
Keep in mind that documenting this training is very important. The following information must be kept for two years
after the training to track compliance with California state law: name of the supervisory employee trained, the date of
training, the type of training, and the name of the training provider.

Are there other considerations I should take into account?
In many cases, organizations choose to only provide sexual harassment training for their managers in California, but this
ignores federal law that encourages organizations to provide harassment training to everyone in the organization. By
training all your managers, you create a consistent message and minimize risks.

The second mistake organizations frequently make is only providing harassment training to managers and neglecting to
train their employees. As mentioned earlier, federal law encourages organizations to provide harassment training to all
employees. More specifically, however, California Government Code requires employers to take “reasonable steps
necessary to prevent discrimination and harassment from occurring.” Providing training for employees is one of those
reasonable steps, and it shows that the organization is serious about creating a professional work environment that is
free of harassment, discrimination, and retaliation.



Frequently Asked Questions

How does an employer determine it has 50 employees?
Having 50 or more employees means employing or engaging 50 or more employees or contractors for each working day
in any 20 consecutive weeks in the current calendar year or preceding calendar year. There is no requirement that the 50
employees or contractors work at the same location or reside in California.

Who is a supervisor?
The definition of supervisor is broad under the law. It includes anyone with the authority to make or recommend
employment actions. Employers must look closely at the job responsibilities of each individual rather than relying on
titles. In many organizations, people who are in lead roles will be considered supervisors under this law.

Do managers who are outside the state but manage employees in the state have to take
mandatory training?
No, they are not required to take the training under AB1825. Federal law, however, encourages organizations to provide
harassment training to everyone in the organization.

Are contractors of the company required to take the training?
No, they are not.

Are employees required to take the training?
No, they are not. Federal law, however, encourages organizations to provide harassment training to all employees. More
specifically, however, California Government Code requires employers to take “reasonable steps necessary to prevent
discrimination and harassment from occurring.” Providing training for employees is one of those reasonable steps, and it
shows that the organization is serious about creating a professional work environment that is free of harassment,
discrimination, and retaliation.

How long after a manager is promoted does he/she have to attend training?
The new manager/supervisor must take the training within six months of being promoted.



Frequently Asked Questions (continued)

How often is the mandatory training required, and how is this calculated?
Every two years. The time is calculated by the employer’s choice of either (a) two years from the date of training, or (b)
two calendar years following the calendar year in which the employee was trained.

How long must the training be?
The training must be two hours of classroom, webinar, or e-learning training. In the case of e-learning training, the
program must take the supervisor no less than two hours to complete. The training does not need to be completed in
two consecutive hours. For classroom training or webinars, the minimum duration of a training segment shall be no less
than half an hour. E-learning courses may include bookmarking features which allow a supervisor to pause his/her
individual training so long as the actual e-learning program is two hours.

Who can deliver the classroom training?
All training must be delivered by a qualified trainer. A trainer is an attorney, human resource professional, harassment
prevention consultant, or law school or college professor who has knowledge and experience in the prevention and/or
handling of harassment, discrimination, and retaliation claims.

What kind of documentation is required for the classroom training?
Documentation must include the following:
• Name of person trained
• Date of training
• Type of training
• Name of training provider
The documentation must be maintained for two years.

What are the additional requirements for webinar/webcast training?
The training must be interactive and must provide participants with the opportunity to ask questions and have them
answered.




Who can deliver the webinar/webcast training?
All training must be delivered by a qualified trainer. A trainer is an attorney, human resource professional, harassment
prevention consultant, or law school or college professor who has knowledge and experience in the prevention and/or
handling of harassment, discrimination, and retaliation claims.

What documentation is required for the webcast training?

What are the additional requirements for the online training?
The training must be interactive and provide a link or directions on how to contact a trainer to answer questions or
provide guidance about the training within no more than two business days after the question is asked.

What documentation is required for the online training?




What remedies exist for a failure to comply with the training requirement?
Technically, violation of the law may result in an order issued by the Fair Employment and Housing Commission to
comply. In addition and as a practical matter, there are other consequences for failing to provide the required training:
• Sends a message to the workforce that prevention of sexual harassment is not a priority
• Discourages reporting of sexual harassment
• Does not provide alternative avenues for complaint
• Could translate into punitive damages or administrative fines if the case goes to trial and training has not been
done

The focus of the statute is sexual harassment. Should the training go beyond this requirement?
While the statute only requires two hours of training on sexual harassment, it is a minimum requirement. The
Department encourages organizations to provide training on all types of harassment, discrimination, and retaliation that
could occur in the workplace. Furthermore, an organization that trains only on sexual harassment and fails to train on
other forms of harassment or discrimination would have a difficult time defending a lawsuit based on racial or other
forms of harassment or discrimination.

What are the protected categories in California?
The Fair Employment and Housing Act prohibits discrimination and harassment of employees, applicants, and contractors
based on race, religion, creed, sex, color, national origin (including language use restrictions), ancestry, physical or
mental disability (including HIV and AIDS), political orientation, gender identity, medical condition (cancer/genetic
characteristics), marital status, pregnancy, sexual orientation, or age (40+ for all employers and any age for state civil
service).



How Can CT Impact®: Managing a Harassment-Free Workplace Help You
Comply with California’s Mandatory Sexual Harassment Training Laws?
CT Impact®: Managing a Harassment-Free Workplace is a two-hour program that gives managers specific skills and tools
they can apply on the job to prevent, detect, and correct sexual harassment in the workplace. Available in online and
classroom delivery formats, the course is designed to help organizations comply with state laws mandating training on
sexual harassment prevention. Using an interactive, skills-based approach, it provides managers with information and
practical guidance on federal and state harassment laws, remedies available to victims, and the roles and responsibilities
of everyone to maintain a lawful, respectful work environment. The program is specifically designed to incorporate state
legal information, which ELI® can provide to help organizations ensure compliance.

The following overview describes the instructor-led program in more detail:

Introduction (40 minutes)
• Effectively communicating organizational policy
• Organization’s anti-harassment policy
• Where to report instances of sexual harassment
• Roles and responsibilities of the organization, managers, and employees in preventing sexual harassment
• Definition of sexual harassment
• Types of sexual harassment (Quid Pro Quo, Hostile Work Environment)
• Examples of sexual harassment
• Federal and state laws prohibiting sexual harassment
• Strategies to prevent sexual harassment in the workplace
• Applicable federal and state cases

Welcoming Concerns (40 minutes)
• Creating a welcoming environment
• Definition of the workplace environment
• Review of same-sex harassment and application exercise
• Review of third-party harassment and examples
• Organization’s open door policy addressing avenues for employees to speak up about their concerns



How Can CT Impact®: Managing a Harassment-Free Workplace Help You
Comply with California’s Mandatory Sexual Harassment Training Laws?
(continued)

Duty to Act (20 minutes)
• Review of a manager’s duty to act and application exercise
• Federal and state remedies available for sexual harassment
• Overview of retaliation with examples
• Organization’s anti-retaliation policy
• Ways to prevent retaliation in the workplace
• What to do if a supervisor is accused of harassment

Business Decisions (15 minutes)
• Maintaining business relationships with employees
• Romantic relationships in the workplace
• Objective vs. subjective criteria
• Performance management discussions

Concerns Resolved (5 minutes)
• Tips for addressing inappropriate third-party behavior
• Action planning activity

Reference Materials
• Federal and state laws preventing sexual harassment
• Federal and state cases
• Sample sexual harassment policy



How Can Civil Treatment® for Managers Help You Comply with California’s
Mandatory Sexual Harassment Training Laws?

ELI’s Civil Treatment® for Managers program includes more than two hours of sexual harassment content and includes
significant information about federal laws prohibiting harassment, discrimination, and retaliation. If supplemented with
some specific information about California law provided in this toolkit in the form of a handout to be used in the
classroom, it can help employers comply with this requirement. The following modules include content addressing the
subjects required under the law:

Introduction (45 minutes)
• Introduction to the workplace environment and Prescriptive Rules®
• Definition of harassment and discrimination
• Risks of inappropriate behavior in the workplace

“Some meeting...” (45 minutes)
• Definition of sexual harassment
• Necessary steps to take to prevent harassment in the workplace
• Employer, manager, and employee responsibilities in minimizing risk of harassment
• Review of organization’s anti-harassment policy and appropriate complaint procedure

“What am I supposed to say?” (40 minutes)
• Definition of sex-based discrimination
• Definition and discussion of retaliation
• How to handle a complaint that is filed against the manager or the organization

“What’s on your mind?” (35 minutes)
• Discussion of a manager’s Duty to Act
• Managers should Get Help from Human Resources
• Organizations have an obligation to investigate complaints of harassment and discrimination



How Can Civil Treatment® for Managers Help You Comply with California’s
Mandatory Sexual Harassment Training Laws? (continued)

AD HOC MODULES
These are optional modules that are included in the course materials and can be added to the Civil Treatment® for
Managers program if desired:

“Strictly business.” (20 minutes)
• Risks of engaging in interoffice relationships
• Actions managers should take if they believe a relationship may taint their objectivity
• Preventing perceptions of bias and discrimination in decision-making

In addition to covering the above modules, facilitators should also make sure to cover the following information in the
handouts provided in this toolkit.
• Review how the California definition of sexual harassment differs from the federal definition.
• Distribute and discuss the organization’s anti-harassment policy and complaint procedure. If the organization does
not have a policy available, ELI® has provided a sample policy that can be used during the training session. This is
typically covered during the “Some meeting…” module.
• Discuss other forms of harassment and discrimination under both federal and California law. This is covered
throughout Civil Treatment® for Managers, but a facilitator should also point participants to the federal and
California comparison chart provided in this toolkit.
• Review federal and California case law. Federal cases are throughout the Civil Treatment® for Managers program.
Additional federal and California cases have been provided in this toolkit.
• Discuss the remedies available for sexual harassment claims. This information is provided in the federal and
California comparison chart as well as in the Department of Fair Employment and Housing pamphlet.
• Remind participants that all complaints of harassment and discrimination must be investigated by the organization,
so they should Get Help from Human Resources if an employee comes to them with a concern. Managers should
also let employees know about the limited confidentiality of the complaint process.



Federal and State Laws Prohibiting Harassment

Overview
Sexual harassment violates Title VII of the Civil Rights Act of 1964, a federal law. This statute prohibits harassment,
discrimination, and retaliation based on sex, race, religion, national origin, and color.

The Equal Employment Opportunity Commission (EEOC), which enforces the statute, defines sexual harassment1 as
unwelcome sexual advances, requests for sexual favors, and other conduct of a sexual nature when the following occur:

• Submitting to the conduct is explicitly or implicitly made a condition of employment
• Submitting to or rejecting the conduct becomes the basis for decisions affecting an employee
• Sexual conduct interferes with an individual’s work performance or creates an intimidating, hostile, or offensive
environment

Many states, such as Connecticut and Maine, have adopted this definition of sexual harassment. However, California
state law expands the federal categories of harassment to include the following2:
• Verbal harassment, including epithets, derogatory comments, or slurs
• Physical harassment, including assault, impeding or blocking movement, or any physical interference with normal
work or movement, when directed at an individual
• Visual harassment, including derogatory posters, cartoons, or drawings
• Sexual favors, including unwanted sexual advances, which condition an employment benefit upon an exchange of
sexual favors

When an employee raises a complaint of sexual harassment or discrimination, managers should let the employee know
how the complaint will be handled and that the process has limited confidentiality because other departments, such as
Human Resources, may have to be involved. Human Resources or Employee Relations are typically involved because
they handle investigations in most organizations. When an organization is made aware of potential harassment or
discrimination, it has a responsibility to investigate the claim and take appropriate action.

1
29 C.F.R. §1604.11.
2
2 CCR 7287.6


Federal and State Laws Prohibiting Harassment: California Law


Comparison of United States/Federal and California Laws

CALIFORNIA
UNITED STATES/FEDERAL
Fair Employment and Housing Act
Title VII of the Civil Rights Act of 1964

Prohibits discrimination and harassment of employees,
Prohibits discrimination and harassment of employees and
applicants and contractors based on:
applicants based on:
• race
• race
• religious creed (including the requirement to
• color
accommodate religious beliefs)
• sex
• color
• religion (including the requirement to accommodate
• national origin
religious beliefs)
• ancestry
• national origin
• physical or mental disability (including the
requirement to accommodate disabilities)
Prohibits retaliation for exercising rights under the law
• medical condition (including genetic characteristics)
• marital status
Enforcement: Equal Employment Opportunity Commission
• sex (including discrimination based on pregnancy,
childbirth and related medical conditions)
Remedies Available: back pay, lost benefits, front pay,
• age
compensatory and punitive damages of up to $300,000 per
• sexual orientation
occurrence of discrimination, and attorneys’ fees and costs.

Sexual harassment is defined as harassment based on sex
or of a sexual nature; gender harassment; and harassment
based on pregnancy, childbirth, or related medical
conditions.

The law also prohibits discrimination in the payment of
compensation based on all of the categories listed above,
and prohibits retaliation for exercising rights under the
statute.

Enforcement: Fair Employment and Housing Commission

Remedies Available: back pay, lost benefits, front pay,
compensatory damages of up to $150,000 per claimant per
violation and of up to $150,000 more for violations of the
Act that also violate the Civil Code’s guarantee of the
personal right to freedom from violence, punitive damages,
and attorneys’ fees and costs

Additional remedies, including administrative fines, civil
penalties and license revocation, can be imposed by the
Fair Employment and Housing Commission in
administrative proceedings.



CALIFORNIA
See Fair Employment and Housing Act
Pregnancy Discrimination Act (PDA)
(preceding page)
Prohibits discrimination and harassment in employment
The prohibition of harassment and discrimination does not
based on pregnancy, childbirth and related medical
provide additional remedies beyond those provided in Title
conditions, and requires equal treatment of pregnant
VII to employees of employers covered by Title VII.
women for all purposes, including the provision of benefits.
See Title VII for available remedies.
In addition to prohibiting harassment and discrimination,
the act requires equal treatment for all purposes, including
specifically the provision of benefits (which must be the
same as for any other employee who is temporarily
disabled) and the availability of transfers to less strenuous
or hazardous positions if such transfers are available to
others who are temporarily disabled.

The act also requires employers:

• to allow employees to take up to four months of leave
for any period of time during which the employee is
disable due to pregnancy, childbirth, or related
medical conditions (with reasonable notice to the
employer and the option to use accrued vacation
time)

• to provide reasonable accommodation to employees
for conditions related to pregnancy, childbirth, or
related medical conditions

Americans With Disabilities Act (ADA)

The act prohibits discrimination and harassment based on
Prohibits discrimination and harassment in employment
an actual or perceived disability or having a record (past
based on an actual or perceived disability, or having a
history) of having a disability; the standard for proving
record (past history) of having a disability; a person is
disability is different under the California law than under
disabled if he or she suffers from a physical or mental
federal law: A person is disabled if he or she suffers from a
impairment that substantially limits a major life activity; the
physical or mental impairment that limits (not substantially
law requires reasonable accommodation to allow a
limits) the individual’s ability to perform a major life
disabled employee to perform the essential functions of the
activity; like federal law, the act also requires reasonable
job. See Title VII for available remedies.
accommodation to allow a disabled employee to perform
the essential functions of the job.



CALIFORNIA
Age Discrimination in Employment Act (ADEA)

Prohibits discrimination and harassment based on age (40
Prohibits discrimination and harassment based on age (40
and over).
and over).

Remedies Available: back pay, front pay, lost benefits,
liquidated damages equal to the amount of back pay,
attorneys’ fees

Equal Pay Act
Equal Pay Act (EPA)

Prohibits the payment of a lower rate to one gender than
Requires equal pay for men and women for equal work.
to the other for equal work.

California Family Rights Act
Family and Medical Leave Act (FMLA)
Requires employers to provide up to 12 weeks of unpaid
Requires employers to provide up to 12 weeks of unpaid
leave during a 12-month period for:
leave during a 12-month period for:
• birth, adoption, or foster placement of a child
• birth, adoption, or foster placement of a child
• care for child, parent, or spouse with a serious health
• care for child, parent, or spouse with a serious health
condition
condition
• the employee’s own serious health condition
• the employee’s own serious health condition
The amount of leave entitlement is pro-rated for part-time
Leave may be taken intermittently or on a reduced work
employees
schedule. Employees must be reinstated to the same job at
the same pay after the leave is over.
Leave may be taken intermittently or on a reduced work
schedule. Employees must be reinstated to the same job at
Employees may elect or employers may require the
the same pay after the leave is over.
substitution of available paid leave for FMLA leave.
Paid Family Leave Law: Under this law, unemployment
benefits are paid to employees who have any loss of
income because they take leave under the Family Rights
Act for a reason other than their own serious health
condition.
School Leave Law: Employers may not discharge or
discriminate against any employee for taking time off to
attend day care or school activities. This leave time is
protected for up to 40 hours per year (up to 8 hours in any
month) for parents, guardians, or grandparents of children
in kindergarten through grade 12. Reasonable notice is
required and written documentation from the school or day
care facility may be required.



Sample Sexual Harassment and Discrimination Policy

Discrimination
This organization is an equal opportunity employer. The organization will not discriminate in regard to any term,
condition, or privilege of employment against any employee or job applicant on the bases of race, color, religion, sex,
national origin, disability, age, or any other legally protected characteristic.

Harassment
The organization is committed to providing a work environment that is free from unlawful harassment. Harassment
based upon an individual's race, religion, sex, national origin, disability, age, or any other legally protected characteristics
will not be tolerated. All employees, including supervisors and other management personnel, are expected and required
to abide by this policy.

Retaliation
No person will be adversely affected in employment with the organization as a result of bringing a good faith complaint
of unlawful harassment or discrimination, or participating in good faith in an investigation under this policy.

Sexual Harassment
Sexual harassment is defined as unwelcome sexual advances, requests for sexual favors, and other verbal or physical
conduct of a sexual nature. This behavior constitutes harassment when (1) submission to or rejection of such conduct is
made either explicitly or implicitly a term or condition of an individual's employment; (2) submission to or rejection of
such conduct by an individual is used as the basis for decisions about employment, promotion, transfer, selection for
training, performance evaluations, benefits, or other terms and conditions of employment; or (3) such conduct has the
purpose or effect of creating an intimidating, hostile, or offensive work environment or substantially interferes with an
employee's work performance. This definition includes many forms of offensive behavior and includes gender-based
harassment of a person of the same sex as the harasser. The following is a partial list of violations:
• Unwanted sexual advances
• Offering employment benefits in exchange for sexual favors
• Threatening reprisals after a negative response to sexual advances
• Leering, making sexual gestures, or displaying sexually suggestive objects, pictures, cartoon, or posters
• Making or using derogatory comments, epithets, slurs, or jokes
• Inappropriate touching or assault



Sample Sexual Harassment and Discrimination Policy (continued)

Reporting Procedure
If an employee feels that he or she has been harassed on the basis of his or her race, color, religion, sex, national origin,
or any other legally protected characteristic, the employee should immediately report the matter to his or her supervisor.

Managers who receive a complaint of harassment or discrimination, or have reason to know that behavior which might
constitute prohibited harassment or discrimination is occurring, must immediately report the matter to Human Resources
and/or the EEO Office.

If the employee’s supervisor is not available, or if the employee is uncomfortable speaking with his or her manager, the
employee should immediately contact Human Resources and/or the EEO Office. Once the matter has been reported, it
will be promptly investigated, and any necessary corrective action will be taken where appropriate. All complaints of
unlawful harassment will be handled in as discreet and confidential a manner as is possible under the circumstances.

The organization takes all allegations of harassment and discrimination seriously. Accordingly, if the organization finds
an employee has knowingly and willingly filed a false claim of harassment or discrimination, the organization will take
disciplinary action against the employee, up to and including termination.



Federal Cases

Supreme Court Establishes Affirmative Defense

A lifeguard prevailed on her sexual harassment complaint against her employer even though she did not report the
harassment. The lifeguard contended she was subjected to a sexually hostile work environment when her supervisors
engaged in activities such as touching the lifeguard’s buttock, commenting on her shape, suggesting the lifeguard
submit to a sexual relationship, and making other and numerous sexual comments. The Court recognized that an
employer may avoid liability for sexual harassment that does not result in a tangible employment action if it can show
that it exercised reasonable care to prevent and promptly correct sexually harassing behavior and that the employee
failed to take advantage of any preventive or corrective opportunities provided by the employer. In this case, however,
the Court found the employer had not exercised reasonable care to prevent the supervisor’s harassing conduct because
it had not disseminated its sexual harassment policy to lifeguards, the policy did not provide a reporting mechanism to
bypass the offending supervisors, and the employer failed to keep track of the conduct of its supervisors.

Faragher v. City of Boca Raton, 118 S.Ct. 2275 (1998).

A female salesperson resigned and sued her employer for sexual harassment. The plaintiff alleged that on three
occasions a supervisor threatened to make her life harder if she did not succumb to his sexual advances. The plaintiff
refused the supervisor’s advances, but the supervisor did not follow through on his threats. Although the plaintiff was
aware of the company’s policy against sexual harassment, she did not report the harassment until three weeks after she
resigned. The Court found that an employer can be liable for a hostile work environment where a supervisor makes
explicit threats to alter a subordinate’s terms or conditions of employment, but does not fulfill the threats. However, as in
the Faragher case, the Court found that such an employer may avoid liability if it can show that it exercised reasonable
care to prevent and promptly correct sexually harassing behavior and that the employee failed to take advantage of any
preventive or corrective opportunities provided by the employer. The Court
remanded the case to the trial court for a determination as to whether the employer could avoid liability by proving the
affirmative defense.

Burlington Industries, Inc. v. Ellerth, 118 S.Ct. 2257 (1998).



Federal Cases (continued)

Sexual Harassment Case Results in Reasonable Woman Standard

A woman who worked for the Internal Revenue Service alleged a co-worker sexually harassed her by repeatedly asking her
out for lunch and writing her notes that she found shocking and frightening. In determining whether the co-worker’s
conduct was sufficiently severe or pervasive to alter the conditions of the woman’s employment and create an abusive
working environment, the Court determined that the co-worker’s conduct must be judged from the viewpoint of a
reasonable third person who shares the same gender characteristic of the plaintiff – in this case, a reasonable woman. In
establishing the “reasonable woman” standard, the Court recognized that there are differences between the sexes in how
the co-worker’s conduct would be perceived. The Court found it most appropriate to view the conduct as would a
reasonable person of the same gender of the plaintiff.

Ellison v. Brady, 924 F.2d 872 (9th Cir. 1991).




Jury Finds for Plaintiff in Hostile Work Environment Case

A female school bus driver was sexually harassed by her male supervisor over a period of six months. In one instance, the
supervisor handed her his pubic hairs. As a result of the harassment, the plaintiff suffered psychological problems for the
next year and a half.

The plaintiff brought a hostile environment sexual harassment lawsuit against the school district and her supervisor. A jury
found that the plaintiff had been subjected to a sexually hostile work environment. The jury awarded the plaintiff $400,000
in compensatory damages and $32,500 in punitive damages. An appeals court later upheld the award.

Sornia v. El Centro Elementary School, 2008 U.S. App. LEXIS 8345 (9th Cir. 2008).

Female Employee Wins Sexual Harassment and Retaliation Lawsuit

A female plaintiff was sexually harassed by her supervisor, an operations manager. The plaintiff alleges that at weekly work
meetings the supervisor kissed her and asked her questions of a sexual nature. She also alleges that she was treated
unfavorably after rejecting his advances. For example, she was denied days off, experienced delays in receiving her
paycheck, and had her shift changed to a less desirable time. The plaintiff complained to her supervisor and an upper level
manager. The upper level manager reportedly told her, “Do you want really to do this? Because you’re going to get [the
supervisor] in trouble.”

The plaintiff filed a sexual harassment and retaliation lawsuit against her employer. The jury found for the plaintiff and
awarded her $3 million, which the court reduced to $850,000 due to statutory caps on certain kinds of damages.

Alvarado v. Fed. Express Corp., 2008 U.S. Dist. LEXIS 21269 (N.D. Cal. 2008).




Employer Found Liable for Harassment and Retaliation

A female bar manager at a hotel was sexually harassed by her direct supervisor, who was the hotel’s general manager,
throughout her employment. The sexual harassment included comments by the general manager about his and the
plaintiff’s bodies, details of his sexual escapades with other women, and descriptions of his pornography collection. The
general manager also touched and grabbed the plaintiff’s hips, genital area, and breasts. He even sexually propositioned
her during work hours. The plaintiff eventually complained of sexual harassment to the owner/operator of the hotel, who
did not investigate the complaint and took no action to stop the harassment. Finally, the general manager terminated the
plaintiff’s employment on Christmas Eve because she would not succumb to his propositions.

The plaintiff sued the hotel for a variety of reasons, including sexual harassment and retaliation. The court found that the
employer was liable and awarded the plaintiff around $268,000 in damages and attorney’s fees.

Merrifield v. Miner’s Inn Rest. & Lounge, 2006 U.S. Dist. LEXIS 68841 (E.D. Cal. 2006).

Police Officer Awarded Over $1 Million After Complaints Ignored

A police officer in Puerto Rico was awarded more than $1 million by a federal jury based on her claims that she was
subjected to sexual harassment, retaliation, and violation of due process. The officer claimed that she was sexually harassed
by a fellow officer. Although her initial report stopped the harassment briefly, subsequent reports resulted in continued
inappropriate conduct and retaliation, including reassignment to less favorable posts and threats of being laid off. The jury
award included compensatory damages under federal law of $250,000 and compensatory damages under state law of
$250,000, plus damages against the individual alleged harasser of $80,000. Under state law, the compensatory damages
were doubled to raise the total amount to just over $1 million. The officer was also reinstated to her former position. The
jury award was affirmed on appeal by the United States Court of Appeals for the First Circuit.

Valentin-Almeya v. Municipality of Aguadilla, 447 F.3d 85 (1st Cir. 2006).




Employer Retaliates Against Plaintiff for Participating in a Discrimination Claim

A male police officer worked for the same department for over 30 years. At one point, he made a written complaint about
numerous problems he perceived within the police department, including his allegation that coworkers were sexually
harassing a female officer. Several years later, the female officer filed a sexual harassment lawsuit against the police
department. The plaintiff sent the female officer a copy of the written complaint he made about the harassment. The female
officer then submitted the plaintiff’s complaint as evidence at a hearing held by the state commission investigating the
lawsuit. Shortly after the hearing, the plaintiff was reassigned to a different position. The new position involved less
compensation and no supervisory responsibility. The police department eventually placed the plaintiff on administrative
leave.

The plaintiff filed a lawsuit claiming that the police department retaliated against him because of his participation in an
employment discrimination claim. The jury agreed and awarded him $300,000 for lost wages and emotional distress.

McDonough v. City of Quincy, 452 F.3d 8 (1st Cir. 2006).

Plaintiff Fired After Filing Sexual Harassment Claim Against Supervisor

A female account manager at a consulting firm was repeatedly harassed by her male supervisor. For example, her
supervisor invited her to his home and to join him on vacations. He also gave her jewelry, in violation of a company policy
against such gifts. He spent excessive amounts of time in her office watching her work and once arranged an “urgent”
early-morning meeting with her but then could not explain the reason for the meeting.

The plaintiff complained to upper management about the harassment. The company launched an investigation, pursuant to
which it contacted the supervisor. The supervisor then attempted to contact the plaintiff directly. The company eventually
called a meeting between the plaintiff and her supervisor, as well as other employees, to discuss the plaintiff’s allegations.
The plaintiff refused to attend a meeting with the supervisor, and the company terminated her employment for
insubordination. The plaintiff brought a lawsuit against her employer claiming she was retaliated against because of her
sexual harassment complaint. The jury found for the plaintiff on her retaliation claim and awarded her over $77,000.

Pappas v. Watson Wyatt & Co., 2008 U.S. Dist. LEXIS 21996 (D. Conn. 2008).



California State Court Cases

Favoritism May Lead to Hostile Work Environment Claim

The California Supreme Court held that individuals who had not themselves been sexually propositioned could still assert a
hostile work environment claim under California law when there was widespread favoritism of employees engaged in
consensual sexual affairs with a manager. Two former prison employees brought claims of sexual harassment alleging that
they were subjected to a hostile work environment and treated less favorably than other female employees because the
prison warden demonstrated favoritism to other female employees with whom he had affairs.

The Court found that “although an isolated instance of favoritism on the part of a supervisor toward a female employee
with whom the supervisor is conducting a sexual affair ordinarily would not constitute sexual harassment, when such
sexual favoritism in a workplace is sufficiently widespread it may create an actionable hostile work environment in which
the demeaning message is conveyed to female employees that they are viewed by management as ‘sexual playthings’ or
that the way required for women to get ahead in the workplace is to engage in sexual conduct with their supervisors or the
management.”

Miller v. Dept. of Corrections, 36 Cal. 4th 446 (2005).



California State Court Cases (continued)

Sales Manager Sues Employer for Retaliation

A sales manager sued her employer for retaliation when she was criticized in front of her direct reports and received
negative performance evaluations after refusing to comply with a supervisor’s order to fire a female sales associate because
she was insufficiently attractive. To support a claim of retaliation, the California Supreme Court found that an employee
must show that he or she has been subjected to an adverse employment action that materially affects the terms,
conditions, or privileges of employment. The sales manager was allowed to move forward with her retaliation claim
because her employer’s conduct was meant to punish her for failing to carry out the supervisor’s orders and placed her
career in jeopardy.

Yanowitz v. L’Oreal USA, Inc., 36 Cal. 4th 1028 (2005).

Employee’s Failure to Report Harassment Does Not Bar Liability

The California Supreme Court has held that while no affirmative defense can be raised to sexual harassment by a
supervisor, an employer may be able to reduce the damages it pays under the “avoidable consequences doctrine”.

An employee sued her employer under California state law claiming that she had been sexually harassed by her supervisor.
She claimed her supervisor made inappropriate comments and engaged in unwelcome physical touching. The employee did
not report the alleged harassment to a supervisor until more than a year after it began. The California Supreme Court found
that, unlike federal law, the employee's failure to report would not bar liability. Strict liability applies in California; however,
the California Supreme Court did find that the “avoidable consequences doctrine” could be applied to limit damages. An
employer can limit damages if it can show that it has taken reasonable steps to prevent and correct harassment, that an
employee could have taken advantage of these without undue risk, expense, or humiliation and unreasonably failed to take
advantage of them, and that using them would have prevented some of the harm the employee experienced. Therefore, the
employee's failure to timely report the harassment to management, if unreasonable, could be considered in reducing a
damages award.

State Dept. of Health Services v. McGinnis, 31 Cal. 4th 1026 (2003).



California State Court Cases (continued)

Male Employee Recovers $1.62 Million in Sexual Harassment Case

A jury in California awarded a male employee $1.62 million based on his claims of sexual harassment and retaliation. The
male employee alleged that he was subjected to repeated sexual harassment by his male supervisor. The supervisor’s
alleged behavior included requiring the employee to go to strip clubs and attend events with prostitutes, showing him
pornographic pictures, and describing to the employee sexual acts he wanted to engage in with various female employees
and his daughter’s friends. The employee claimed that he raised internal complaints about the behavior, but the company
ignored his complaints. His employment was subsequently terminated.

Astor v. Rent-A-Center, 2007 Cal. App. Unpub. LEXIS 621 (Cal. Ct. App. Jan. 25, 2007).

Plaintiff Wins $3.9 Million Because of Employer’s Outrageous Conduct

A female plaintiff worked as a hostess at a restaurant owned by a married couple. The husband frequently harassed the
plaintiff by rubbing his body against hers, attempting to kiss her, and making comments of a sexual nature to her. The
plaintiff complained, but the employer did not investigate her complaint. On one occasion, the husband attacked the
plaintiff. He trapped her in his office, removed his clothes, and placed her hand on his sexual parts. After this attack, the
plaintiff suffered from depression and was diagnosed with post-traumatic stress disorder. The plaintiff complained to a
manager about the attack and refused to return to work. The wife, who served as Human Resources director, investigated
but allowed her husband to sit in on the employee interviews.

The plaintiff filed a lawsuit against the restaurant and male owner for, among other things, sexual harassment. A jury
awarded the plaintiff over $3.9 million. An appeals court later ruled that the award was reasonable given the husband’s
outrageous conduct.

Leontaritis v. Koursasis, 2008-CA-0924.014 (Ca. App. 2008).


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