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For many years, the wider community have agreed everyone is entitled to a workplace that is free from sexual harassment. To make this community value law, the California government established the Fair Employment and Housing Act (FEHA). However, not every issue can be dealt with at once, so there have been amendments to the FEHA over the years, to better provide for those who are affected by sexual harassment in their workplaces.
The FEHA was created as an enhancement of the protections of the Federal Government’s anti-discrimination laws (the Civil Rights Act 1964 – Title VII – covers sexual harassment), and its protections extend to those in professional relationships, as well as independent contractors.[1]
As mentioned above, the FEHA has been amended numerous times to better cope with the changing scope of sexual harassment in the workplace. The majority of these decisions have been initiated though cases in the California courts. Some of the major changes are listed below.
The Court system amended the FEHA – as it clarified the existing laws – to make employers potentially liable for instances in which related third parties (such as the employer’s customers or clients) sexually harass their employees.[2]
This case established that there is no recovery for occasional or isolated harassment. Sexual harassment was defined as being pervasive or severe. Which meant that the harassment did not count as a few isolated incidents, and a reasonable person had to consider the incidents as harassment.[3]
Confirmed that the employer is strictly liable for any hostile work environments, as well as any sexual harassment by a supervisor. The court also recognized that the doctrine of avoidable consequence applies. That is, recoverable damages do not include damages that the plaintiff could have avoided with reasonable effort.[4]
As a result of these cases, and many others, there have been subsequent amendments to the FEHA that have been passed by the California legislature. While these changes are all well and good, they do often create confusion, particularly those not equipped with the necessary expertise to understand legal language.
This confusion can lead to employees not wanting to report the sexual harassment that may be happening within their workplace, as they fear they may not succeed with their action. In effect, such confusion serves in many ways to counteract the benefits for employees that are often the intention of such amendments.
Therefore, while we have many laws to aim to protect our workplace rights, at times they may be too confusing or vague for the lay person to understand. As a result, in the absence of strong, employer-instated anti-harassment policies, many who fall victim to sexual harassment and other reprehensible treatment are unaware of their legal rights or how to exercise them.