Employers Have Affirmative Duty to Take Reasonable Steps to Prevent Harassment or Discrimination
 Aug. 17, 2012

On July 26, 2012, a federal judge in Las Vegas ordered Prospect Airport Services, Inc., a provider of wheelchair assistance services to airline passengers, to implement extensive measures to prevent future sexual harassment. After agreeing to a monetary settlement of $75,000 in a lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), Prospect refused to agree to any prospective relief to prevent future harassment. The EEOC petitioned the court for an injunction and order directing compliance. The judge issued an order prohibiting Prospect from further violating Title VII as it relates to sexual harassment for a period of five years. Prospect must develop a policy and procedures for handling reports of sexual harassment and an effective investigation process for all harassment complaints. It must also "appropriately discipline management and human resources staff for failure to comply with such procedures and provide annual sexual harassment training to all supervisory employees".

The EEOC will monitor compliance and can haul Prospect into court again for any failure to comply with these orders or for damages based on new harassment incidents. The EEOC had charged the company with failing to address complaints of unrelenting sexual advances toward a male passenger services assistant by a female co-worker. The employee, whose wife had passed away, received sexually suggestive notes and unwelcome advances. He rebuffed the advances and brought the notes to the attention of a general manager who made light of the situation and failed to stop the harassment. There was no effective company policy at the time to address the issue. Over the course of a year, the harassment escalated to a near-daily basis, including offensive remarks by co-workers about his sexuality due to his rigorous rejection of the sexual advances. Despite his repeated complaints to management, the hostile work environment ended only when he resigned. The EEOC’s press release states: "Today the court has spoken to affirm the importance for all employers to have effective policies and procedures in place to prevent discrimination in the workplace... A strong policy, meaningful training and a swift response to complaints help to contain an existing hostile work environment or to prevent one from arising."

Under California’s Fair Employment & Housing Act (FEHA), failure to "take all reasonable steps to prevent discrimination or harassment from occurring" is a separate unlawful employment practice. In a precedent setting decision against a small law firm, the Fair Employment & Housing Commission (FEHC) determined that the Department of Fair Employment & Housing (DFEH) can prosecute an action for such failure, even when the underlying claims of harassment and retaliation aren’t proven. In DFEH vs. Law Offices of Jeffrey Lyddan, the FEHC determined that Lyddan's statements, gestures and cartoons directed toward a paralegal, while often in bad taste, did not rise to the level of objectively severe and pervasive harassment that interfered with her ability to perform her job duties. Nevertheless, it supported a "stand alone" action by the California enforcement agency for failing to take all reasonable steps to prevent harassment from occurring. Without actionable harassment or retaliation, such a claim may not be actionable by a private litigant in a civil action.

The Commission (FEHC) found that Lyddan failed to maintain an anti-harassment policy, did not attend harassment training, and failed to order a fair and impartial investigation into the paralegal's charges of harassment presented in her email when she resigned. Therefore, Lyddan was liable for failure to take all reasonable steps to prevent harassment from occurring. FEHA requires "effective remedies" that will both "prevent and deter" discrimination. This is why EEOC and DFEH require employers to adopt significant future anti-discrimination practices and conduct widespread training as part of their settlement agreements.

The affirmative duty to prevent future harassment goes beyond sexual harassment to other hostile environment claims, including disability. In the May 2012 newsletter, we reported on Espinoza v. Orange County, in which an employee was awarded more than $850,000 after harassment by his co-workers and indifference by the County to his complaints. Failure to prevent future discrimination is also a separate unlawful employment practice in disability discrimination lawsuits. The DFEH has obtained settlements and Commission decisions with affirmative requirements for expanding reasonable accommodation procedures, adopting preventative practices and training in several pregnancy and disability discrimination actions in the last 18 months. In DFEH v. Acme Electric, the FEHC handed down the largest award in its history to a sales manager with cancer when his employer violated FEHA by ignoring the duty to engage in a good faith interactive process, refusing to reasonably accommodate his disability and "failing to take all reasonable steps necessary to prevent discrimination from occurring."

Prevention Strategies: Update your discrimination prevention policies and periodically audit their enforcement – even before someone complains. Make sure your complaint procedures have accessible avenues for employees to report harassing work environments. Conduct an immediate neutral fact-finding investigation with every internal discrimination complaint, even when it is raised by a departing employee, because the alleged behavior may still occur with others. Update your disability processes to comply with the broad interactive process and reasonable accommodation requirements imposed by FEHA. California law mandates that leaders receive harassment prevention training every two years. Provide training for front-line supervisors on the standards for preventing discrimination or retaliation against employees who seek reasonable accommodations or take leaves of absence for medical conditions and/or disabilities.

Patricia S. Eyres (Patti) is Managing Partner of Eyres Law Group, LLP. She is a Phi Beta Kappa graduate of Stanford University and earned her law degree from Loyola Law School, cum laude in 1977. Patti calls herself a "recovering litigator," who knows first-hand the value of paying attention to prevention. After spending 18 years devoted exclusively to defending companies in the courtroom, she resolved to help business leaders recognize potential legal landmines before they explode into lawsuits. She brings a unique and practical perspective to the critical legal issues impacting the workplace. As CEO/Publisher of Proactive Law Press, LLC, , Eyres supervises the production and publication of books, training materials and educational products for business owners, public school administrators, front-line leaders, HR and Risk Managers. She can be reached at peyres@eyreslaw.com or 480-607-5847.


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