Employers can sometimes be torn between doing the right thing and … well, tending to the practical, day-to-day realities of running a business. That’s certainly true when it comes to sexual harassment.
You know you have to take reasonable steps to prevent sexual harassment. If prevention doesn’t work, then you have an obligation to put an end to it. But what if you work in a setting where sexual harassment “comes with the territory”?
From the court’s perspective, that doesn’t matter.
Employers are legally bound to protect employees, as the following case clearly shows.
Recent case: Joyce Turman worked for Turning Point of Central California for five years until she was terminated. Her job with the company was to supervise a halfway house facility that houses federal and state prisoners making the transition from incarceration back into society and the workplace. When Turman worked there, most of the prisoners were men.
Turman was responsible for making sure the prisoners living at the facility didn’t drink, do drugs or engage in other activities inconsistent with their reintegration into the larger society. As part of her job, she had to write up residents for transgressions. The inmates often complained bitterly, and her male supervisor tended not to back her up. He frequently overturned her write-ups, and he himself issued just one write-up during the entire time Turman worked at the facility.
Turman complained early on that residents propositioned her for sex, directed sexual gestures toward her and called her names like whore, ho, bitch and worse.
The supervisor’s response was that Turman should just be nicer to the residents, so they would treat her better. Needless to say, the conduct continued.
When she was finally terminated during a reduction in force, she sued, alleging her former employer had allowed a sexually hostile work environment to exist for years.
A jury agreed that the conduct she described was severe enough to constitute sexual harassment. However, the jury bought the employer’s argument that Turman’s job of supervising prisoners was one in which sexual harassment was inherently part of the job.
Turman appealed. The California Court of Appeal said the jury and the employer got it all wrong. The employer had clearly done nothing to prevent or stop the harassment. The fact that third parties were doing the harassment didn’t mean the employer was off the hook.
While preventing and stopping harassment in such a situation may be tougher than in other workplaces, that didn’t absolve the employer of the duty to try. (Turman v. Turning Point of Central California, No. H032576, Court of Appeal of California, 2010)
Final note: Under California’s Fair Employment and Housing Act, employers are responsible when “nonemployees sexually harass an employee, and the employer does not take action to alleviate the harassment.” That action is supposed to be “immediate and appropriate” and can take into account the degree of control it has over the third-party harassers. That means ignoring an employee’s complaint is not an option.
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