Employer’s Failure to Prevent Harassment, Discrimination, or Retaliation in California: Overview, Legal Consequences, and Potential Problems

Introduction:

California has robust employment laws in place to protect workers from harassment, discrimination, and retaliation in the workplace. Employers in the state have a legal duty to take reasonable steps to prevent and address such issues. Failure to do so can lead to severe legal consequences, including wrongful termination claims.

I. Legal Framework:

A. California Fair Employment and Housing Act (FEHA): California’s primary anti-discrimination law is the FEHA. It prohibits employment discrimination, harassment, and retaliation based on various protected characteristics, including race, gender, age, disability, and more.

B. Duty to Prevent: Under the FEHA, employers in California have a legal obligation to take all reasonable steps necessary to prevent and correct discriminatory and harassing conduct in the workplace. This includes implementing anti-discrimination and anti-harassment policies, conducting training, promptly investigating complaints, and taking appropriate corrective actions.

II. Legal Consequences:

A. Wrongful Termination Claims: When an employer fails to prevent harassment, discrimination, or retaliation and an employee is subjected to such conduct, the affected employee may have grounds for a wrongful termination claim. Wrongful termination claims typically assert that the employee was fired in violation of public policy or due to their status as a whistleblower or a protected characteristic.

B. Civil Liability: Employers can face significant civil liability if they fail to prevent workplace misconduct. This may result in monetary damages, including compensatory and punitive damages, as well as legal fees and court costs.

C. Administrative Actions: Regulatory agencies such as the California Department of Fair Employment and Housing (DFEH) can initiate investigations into allegations of an employer’s failure to prevent harassment, discrimination, or retaliation. Employers found in violation may face fines, penalties, and mandatory compliance measures.

III. Potential Problems:

A. Inadequate Policies and Training: Employers may encounter problems if their anti-discrimination and anti-harassment policies are insufficient or if they fail to provide adequate training to employees. Inadequate policies and training can weaken an employer’s defense in the event of a lawsuit.

B. Inconsistent Enforcement: If an employer fails to consistently enforce its anti-discrimination and anti-harassment policies, it may create an environment where misconduct is tolerated. This can lead to legal liability, even if policies are in place.

C. Retaliation Claims: An employer’s failure to prevent retaliation can result in additional legal consequences. Employees who report harassment, discrimination, or other illegal conduct and subsequently face adverse employment actions may bring retaliation claims.

IV. Examples:

1. Example of a Successful Wrongful Termination Claim: An employee reports ongoing racial harassment to their supervisor and HR. The employer fails to take any action to stop the harassment. The employee, unable to endure the hostile work environment any longer, resigns. In this case, the employee may have a strong wrongful termination claim based on constructive discharge due to the employer’s failure to prevent harassment.
2. Example of a Failed Anti-Harassment Training Program: An employer provides anti-harassment training to its employees but does so irregularly and without meaningful content. As a result, employees remain unaware of their rights and obligations. If a harassment incident occurs and the employer relies on its training program as a defense, it may be challenged successfully in court for inadequate prevention efforts.

Conclusion

In conclusion, California’s employment laws place a significant responsibility on employers to prevent harassment, discrimination, and retaliation in the workplace. Failure to do so can lead to severe legal consequences, including wrongful termination claims, civil liability, and administrative actions. To mitigate these risks, employers must establish robust policies, provide thorough training, consistently enforce policies, and promptly address complaints to create a workplace free from harassment and discrimination.

Call 310-312-1100 Now to schedule a time to discuss your matter with Attorney John Michael Jensen.

2527. Failure to Prevent Harassment, Discrimination, or Retaliation—Essential Factual Elements—Employer or Entity Defendant (Gov. Code, § 12940(k))

[Name of plaintiff] claims that [name of defendant] failed to take all reasonable steps to prevent [harassment/discrimination/retaliation] [based on [describe protected status—e.g., race, gender, or age]]. To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of plaintiff] [was an employee of [name of defendant]/ applied to [name of defendant] for a job/was a person providing services under a contract with [name of defendant]];
2. That [name of plaintiff] was subjected to [harassment/discrimination/retaliation] in the course of employment;
3. That [name of defendant] failed to take all reasonable steps to prevent the [harassment/discrimination/retaliation];
4. That [name of plaintiff] was harmed; and
5. That [name of defendant]’s failure to take all reasonable steps to prevent [harassment/discrimination/retaliation] was a substantial factor in causing [name of plaintiff]’s harm.

New June 2006; Revised April 2007, June 2013, December 2015

Directions for Use

Give this instruction after the appropriate instructions in this series on the underlying claim for discrimination, retaliation, or harassment if the employee also claims that the employer failed to prevent the conduct. (See Gov. Code, § 12940(k).) Read the bracketed language in the opening paragraph beginning with “based on” if the claim is for failure to prevent harassment or discrimination.

For guidance for a further instruction on what constitutes “reasonable steps,” see section 11019(b)(4) of Title 2 of the California Code of Regulations.

Sources and Authority

• Prevention of Discrimination and Harassment. Government Code section 12940(k).
• “The employer’s duty to prevent harassment and discrimination is affirmative and mandatory.” (Northrop Grumman Corp. v. Workers’ Comp. Appeals Bd. (2002) 103 Cal.App.4th 1021, 1035 [127 Cal.Rptr.2d 285].)
• “Once an employer is informed of the sexual harassment, the employer must take adequate remedial measures. The measures need to include immediate

corrective action that is reasonably calculated to (1) end the current harassment and (2) to deter future harassment. [Citation.] The employer’s obligation to take prompt corrective action requires (1) that temporary steps be taken to deal with the situation while the employer determines whether the complaint is justified and (2) that permanent remedial steps be implemented by the employer to prevent future harassment………………………… ” (M.F. v. Pacific Pearl Hotel Management LLC

(2017) 16 Cal.App.5th 693, 701 [224 Cal.Rptr.3d 542].)

• “This section creates a tort that is made actionable by statute. ‘ “ ‘[T]he word “tort” means a civil wrong, other than a breach of contract, for which the law will provide a remedy in the form of an action for damages.’ ‘It is well settled the Legislature possesses a broad authority . . . to establish      tort causes of

action.’ Examples of statutory torts are plentiful in California law.” ’ Section 12960 et seq. provides procedures for the prevention and elimination of unlawful employment practices. In particular, section 12965, subdivision (a) authorizes the Department of Fair Employment and Housing (DFEH) to bring an accusation of an unlawful employment practice if conciliation efforts are unsuccessful, and section 12965, subdivision (b) creates a private right of action for damages for a complainant whose complaint is not pursued by the DFEH.” (Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 286 [73 Cal.Rptr.2d 596], internal citations omitted.)

• “With these rules in mind, we examine the section 12940 claim and finding with regard to whether the usual elements of a tort, enforceable by private plaintiffs, have been established: Defendants’ legal duty of care toward plaintiffs, breach of duty (a negligent act or omission), legal causation, and damages to the plaintiff.” (Trujillo, supra, 63 Cal.App.4th at pp. 286–287, internal citation omitted.)
• “[W]hether an employer sufficiently complied with its mandate to ‘take immediate and appropriate corrective action’ is a question of fact.” (M.F., supra, 16 Cal.App.5th at p. 703, internal citation omitted.)
• “[C]ourts have required a finding of actual discrimination or harassment under FEHA before a plaintiff may prevail under section 12940, subdivision (k).” (Dickson v. Burke Williams, Inc. (2015) 234 Cal.App.4th 1307, 1314 [184

Cal.Rptr.3d 774].)

• “Also, there is a significant question of how there could be legal causation of any damages (either compensatory or punitive) from such a statutory violation, where the only jury finding was the failure to prevent actionable harassment or discrimination, which, however, did not occur.” (Trujillo, supra, 63 Cal.App.4th at p. 289.)
• “[T]he ‘Directions for Use’ to CACI No. 2527 (2015),……. states that the failure

to prevent instruction should be given ‘after the appropriate instructions in this series on the underlying claim for……………………………………… harassment if the employee also claims

that the employer failed to prevent the conduct.’ An instruction on the elements of an underlying sexual harassment claim would be unnecessary if the failure to take reasonable steps necessary to prevent a claim for harassment could be based

7

on harassing conduct that was not actionable harassment.” (Dickson, supra, 234 Cal.App.4th at p. 1317.)

• “In accordance with . . . the fundamental public policy of eliminating discrimination in the workplace under the FEHA, we conclude that retaliation is a form of discrimination actionable under [Gov. Code] section 12940, subdivision (k).” (Taylor v. City of Los Angeles Dept. of Water & Power (2006) 144 Cal.App.4th 1216, 1240 [51 Cal.Rptr.3d 206], disapproved on other grounds in Jones v. The Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158 [72 Cal.Rptr.3d 624, 177 P.3d 232].)
  • “[Defendant] suggests that a separate element in CACI No. 2527 requiring [plaintiff] to prove that the failure to prevent discrimination or retaliation was ‘a substantial factor in causing her harm’ is equivalent to the disputed element in the other CACI instructions requiring [plaintiff] to prove that her pregnancy- related leave was ‘a motivating reason’ for her discharge. However, the ‘substantial factor in causing harm’ element in CACI No. 2527 does not concern the causal relationship between the adverse employment action and the plaintiff’s protected status or activity. Rather, it concerns the causal relationship between the discriminatory or retaliatory conduct, if proven, and the plaintiff’s injury.” (Alamo v. Practice Management Information Corp. (2013) 219 Cal.App.4th 466, 480 [161 Cal.Rptr.3d 758].)

Secondary Sources

8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, §§ 1025, 1026

Chin et al., California Practice Guide: Employment Litigation, Ch. 7-A, Title VII And The California Fair Employment and Housing Act, ¶¶ 7:670–7:672 (The Rutter Group)

2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under Equal Employment Opportunity Laws, §§ 41.02[6], 41.80[1], 41.81[7] (Matthew Bender)

3 Wilcox, California Employment Law, Ch. 43, Civil Actions Under Equal Employment Opportunity Laws, § 43.01[10][g] (Matthew Bender)

Call 310-312-1100 Now to schedule a time to discuss your matter with Attorney John Michael Jensen.

2528. Failure to Prevent Harassment by Nonemployee (Gov. Code,§ 12940(j))

[Name of plaintiff] claims that [name of defendant] failed to take reasonable steps to prevent harassment based on [his/her/nonbinary pronoun] [describe protected status, e.g., race, gender, or age] by a nonemployee. To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of plaintiff] [was an employee of [name of defendant]/ applied to [name of defendant] for a job/was an unpaid [intern/ volunteer] for [name of defendant]/was a person providing services under a contract with [name of defendant]];
2. That while in the course of employment, [name of plaintiff] was subjected to harassment based on [his/her/nonbinary pronoun] [e.g., race] by [name], who was not an employee of [name of defendant];
3. That [name of defendant] knew or should have known that the nonemployee’s conduct placed employees at risk of harassment;
4. That [name of defendant] failed to take immediate and appropriate [preventive/corrective] action;
5. That the ability to take [preventive/corrective] action was within the control of [name of defendant];
6. That [name of plaintiff] was harmed; and
7. That [name of defendant]’s failure to take immediate and appropriate steps to [prevent/put an end to] the harassment was a substantial factor in causing [name of plaintiff]’s harm.

New November 2018; Revised January 2019

Directions for Use

Give this instruction on a claim against the employer for failure to prevent harassment by a nonemployee. The FEHA protects not only employees, but also applicants, unpaid interns or volunteers, and persons providing services under a contract (element 1). (Gov. Code, § 12940(j)(1).) Modify references to employment in elements 2 and 3 as necessary if the plaintiff’s status is other than an employee. Note that unlike claims for failure to prevent acts of a co-employee (see Gov. Code,

§ 12940(k)), only harassment is covered. (Gov. Code, § 12940(j)(1).) If there is such a thing as discrimination or retaliation by a nonemployee, there is no employer duty to prevent it under the FEHA.8

The employer’s duty is to “take immediate and appropriate corrective action.” (Gov. Code § 12940(j)(1).) In contrast, for the employer’s failure to prevent acts of an employee, the duty is to “take all reasonable steps necessary to prevent discrimination and harassment from occurring.” (Gov. Code, § 12940(k).)

Whether the employer must prevent or later correct the harassing situation would seem to depend on the facts of the case. If the issue is to stop harassment from recurring after becoming aware of it, the employer’s duty would be to “correct” the problem. If the issue is to address a developing problem before the harassment occurs, the duty would be to “prevent” it. Choose the appropriate words in elements 4, 5, and 7 depending on the facts.

Sources and Authority

• Prevention of Harassment by a Nonemployee. Government Code section 12940(j)(1).
  • Prevention of Discrimination and Harassment. Government Code section 12940(k).
  • “The FEHA provides: ‘An employer may . . . be responsible for the acts of nonemployees, with respect to sexual harassment of employees . . . , where the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing cases involving the acts of nonemployees, the extent of the employer’s control and any other legal responsibility that the employer may have with respect to the conduct of those nonemployees shall be considered.’ . . . ’ A plaintiff cannot state a claim for failure to prevent harassment unless the plaintiff first states a claim for harassment.” (M.F. v. Pacific Pearl Hotel Management LLC (2017) 16 Cal.App.5th 693, 700-701 [224 Cal.Rptr.3d 542].)
  • “Once an employer is informed of the sexual harassment, the employer must take adequate remedial measures. The measures need to include immediate corrective action that is reasonably calculated to (1) end the current harassment and (2) to deter future harassment. [Citation.] The employer’s obligation to take prompt corrective action requires (1) that temporary steps be taken to deal with the situation while the employer determines whether the complaint is justified and (2) that permanent remedial steps be implemented by the employer to prevent future harassment . . . .” (M.F., supra, 16 Cal.App.5th at p. 701.)
  • “[T]he language of section 12940, subdivision (j)(1), does not limit its application to a particular fact pattern. Rather, the language of the statute provides for liability whenever an employer (1) knows or should know of sexual harassment by a nonemployee and (2) fails to take immediate and appropriate remedial action (3) within its control. (M.F., supra, 16 Cal.App.5th at p. 702.)
  • “[W]hether an employer sufficiently complied with its mandate to ‘take immediate and appropriate corrective action’ is a question of fact.” (M.F., supra, 16 Cal.App.5th at p. 703, internal citation omitted.)
  • “The more egregious the abuse and the more serious the threat of which the

employer has notice, the more the employer will be required under a standard of reasonable care to take steps for the protection of likely future victims.” (M.F., supra, 16 Cal.App.5th at p. 701.)

Secondary Sources

3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,

§§ 363, 370

8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, §§ 1019, 1028, 1035

Call 310-312-1100 Now to schedule a time to discuss your matter with Attorney John Michael Jensen.