1 AB 1825 T RAINING S EXUAL HARASSMENT W HAT IT IS . H OW TO PREVENT IT. Presented DON P HIN , E SQ. 2 California attorney since 1983 specializing in employment practices litigation and prevention. Developer of the HR That Works program, acquired by THinkHR. Author of seven books. Editor of EPLiC published by IRMI. Editor Compliance and Culture Newsletter. Lives in Coronado, CA. Married with three sons. TODAY ’S P ROGRAM 3 AB 1825 requirements Investigation Remedies Prevention strategies and tools Definition of Sexual Harassment Regulations and case Model scenario law examples Types of SH conduct Quiz with examples Questions and answers Complaint process and other resources 1 4 WHAT IS SEXUAL HARASSMENT? 5 F EDERAL S TATUTES AND CASES 1964 Civil Rights Act- protects against sex discrimination. Applies to companies with 15+ employees or if engaged in interstate commerce. Catharine MacKinnon –feminist author and scholar. In 1979 wrote "Sexual Harassment of Working Women" EEOC Regulations- CFR Title 29 In 1980, the Equal Employment Opportunity Commission (EEOC) issued regulations defining sexual harassment and stating it was a form of sex discrimination prohibited by the Civil Rights Act of 1964. In 1986, the Supreme Court first ruled in Vinson v. Merit One Bank that sexual harassment can be sex discrimination prohibited by Title VII of the Civil Rights Act of 1964. CALIFORNIA S TATUTES 6 1959 Fair Employment Practice Act signed by Gov. Pat Brown 1970 Prohibition against sex discrimination added to FEPA 1980 FEPA and Rumford Act (housing) combined within FEHA 1983 Harassment and anti-retaliation added to FEHA 1993 Poster and pamphlet requirement added to FEHA 2 CALIFORNIA S TATUTES CONT. 7 8 Fair Employment and Housing Act- applies to every employer California Code of Regulations Enforced by Department of Fair Employment and Housing (DFEH) 2005 AB 1825 passed requiring mandatory supervisor training for companies with 50 + employees SB 292 new law says it does not have to be motivated by sexual desire CALIFORNIA CASE #1 Yanowitz v. L’Oreal (CA Supreme Ct 2005) discusses new guidelines around retaliation. Employers have to guard against retaliation- even for marginal complaints. 9 YANOWITZ V. L’O REAL CONT. “We conclude that an employee's refusal to follow a supervisor's order that she reasonably believes to be discriminatory constitutes protected activity under the FEHA and that an employer may not retaliate against an employee on the basis of such conduct when the employer, in light of all the circumstances, knows that the employee believes the order to be discriminatory, even when the employee does not explicitly state to her supervisor or employer that she believes the order to be discriminatory.” 3 CALIFORNIA CASE #2 10 Miller v. Dept. of Corrections (CA Supreme Ct 2005) ruling that an employer can be sued for sexual harassment for conveying a message that the way to get ahead at work is to sleep with the boss. For the EEOC's position on this subject see http://www.eeoc.gov/policy/docs/sexualfavo r.html. 11 M ILLER V. D EPT. C ORRECTIONS CONT. 1. An employee may establish an actionable claim of sexual harassment under the FEHA by demonstrating widespread sexual favoritism that was severe or pervasive enough to alter his or her working conditions and create a hostile work environment. 2. Even though an employee’s complaint to management does not specifically include the words “sexual harassment” or “sexual discrimination,” if the nature of the complaint is such that management could reasonably believe the employee was making a claim of sexual harassment in violation of the FEHA, such a complaint constitutes a “protected activity” under the FEHA. CALIFORNIA CASE #3 12 Lyle v. Warner Bros. TV Prods (CA Supreme Ct. 2006) in a unique fact scenario, the Court ruled constant sexual language was not improper. The plaintiff, hired as a writer’s assistant for the “Friends” TV serial, claimed the writers produced a hostile environment as a result of frequent sexual banter. The Court, sidestepping First Amendment issues, ruled no liability because she was forewarned re the environment, because it was a natural part of the writing process and that there was no disparate treatment. Note: no comments were made specifically about the plaintiff. 4 LYLE V. WARNER B ROS . 13 14 CONT. 1. “Because the FEHA, like Title VII, is not a fault based tort scheme, unlawful sexual harassment can occur even when the harassers do not realize the offensive nature of their conduct or intend to harass the victim.” 2. “…numerous court decisions have held evidence of misogynous, demeaning, offensive, obscene, sexually explicit and degrading words and conduct in the workplace is relevant to prove environmental sexual harassment.” CALIFORNIA CASE #4 Sallie Mae Bradley v. California Department of Corrections and Rehabilitation (California Fifth Appellate District) “CDC had duty to act immediately to stop the sexual harassment …and to ensure that no harassment had occurred. Referring the matter to a lengthy and complicated investigative process alone is insufficient to comply with the protections mandated by the FEHA when continued contact with the harasser leads to further harassment.” Failing to stop the harassment resulted in a verdict of $437,000 and attorney fees of $305,000. 15 D EFINITION OF S EXUAL H ARASSMENT The Fair Employment and Housing Commission regulations define sexual harassment as unwanted sexual advances, or visual, verbal or physical conduct of a sexual nature. This definition includes many forms of offensive behavior and includes gender-based harassment of a person of the same sex as the harasser. 5 L IST OF SH V IOLATIONS 16 Unwanted sexual advances Offering employment benefits in exchange for sexual favors (quid pro quo, meaning “this for that”) Making or threatening reprisals after a negative response to sexual advances Visual conduct: leering, making sexual gestures, displaying of suggestive objects or pictures, cartoon or posters Verbal conduct: making or using derogatory comments, epithets, slurs, and jokes L IST OF V IOLATIONS CONT. 17 18 Verbal sexual advances or propositions Verbal abuse of a sexual nature, graphic verbal commentaries about an individual's body, sexually degrading words used to describe an individual, suggestive or obscene letters, notes or invitations Physical conduct: touching, assault, impeding or blocking movements A BUSIVE CONDUCT “Abusive conduct” means conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests. Abusive conduct may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person’s work performance. A single act shall not constitute abusive conduct, unless especially severe and egregious. 6 STATISTICS 19 20 Most women have experienced SH Thousands of claims filed with EEOC (12,000) and DFEH (4000) annually Half dismissed as “no reasonable cause” Increase in claims by men v. women and same sex claims. 16 % by men per EEOC. Average verdict $200,000. Settlement $75,000 M OST C OMMON C OMPLAINTS #1 An employee is fired or denied a job or an employment benefit because he/she refused to grant sexual favors or because he/she complained about harassment. Retaliation for complaining about harassment is illegal, even if it cannot be demonstrated that the harassment actually occurred. 21 M OST C OMMON C OMPLAINTS #2 An employee is exposed to an offensive work environment. Exposure to various kinds of behavior or to unwanted sexual advances alone may constitute harassment. 7 22 M OST C OMMON C OMPLAINTS #3 An employee quits because he/she can no longer tolerate an offensive work environment, referred to as a "constructive discharge" harassment case. If it is proven that a reasonable person, under like conditions, would resign to escape the harassment, the employer may be held responsible for the resignation as if the employee had been discharged. 23 S EXUAL H ARASSMENT I S : Unwelcomed sexual advances Quid Pro Quo Adverse Consequence Hostile Environment 24 H OSTILE E NVIRONMENT Jokes, posters, remarks Looks and gestures Favoritism 8 IT’S ABOUT POWER 25 Strength = Power Resources = Power Knowledge = Power IT’ S ABOUT SEX 26 Hormonal Laws 27 drives of attraction %15-%20 of couples meet at work Misusing our energy I T ’S A BOUT P ERCEPTION Men are from Mars, Women are from Venus Funny to you, insulting to me Respect peoples differences 9 I T ’S A BOUT S TUPIDITY 28 Some people just “don’t get it” or don’t want to get it! WHO G ETS H ARASSED ? 29 Anyone can be sexually harassed Women to men Same sex harassment W HO HARASSES ? 30 Supervisors Co-workers Third Parties 10 THE “R EASONABLE P ERSON ” S TANDARD 31 32 Not just your view point Objective view point Subjective view point Hypersensitivity W EIGHING THE C IRCUMSTANCES Is it sexual? Is it unwelcome? Is it severe? Is it frequent? D OES IT I NTERFERE W ITH THE J OB ? 33 Productivity Promotions Mind, body or spirit 11 34 P ROVOCATION AND CONSENT Behavior Dress Speech 35 36 D EFENSE THAT W ON ’T W ORK “Boys will be boys” “I didn’t mean anything by it” “She asked for it” E MPLOYER LIABILITY An employer might avoid liability if the harasser is a non-management employee, the employer had no knowledge of the harassment, and there was a program to prevent harassment. If the harasser is a non-management employee, the employer may avoid liability if the employer takes immediate and appropriate corrective action to stop the harassment once the employer learns about it. Employers are strictly liable for harassment by their supervisors or agents. 12 37 E MPLOYER L IABILITY, CONT. Government Code section 12940, subdivision (k), requires an entity to take "all reasonable steps to prevent harassment from occurring." If an employer has failed to take such preventative measures, that employer can be held liable for the harassment. A victim may be entitled to monetary damages even though no employment opportunity has been denied and there is no actual loss of pay or benefits. P ERSONAL LIABILITY 38 The harasser can be held personally liable for sexual harassment damages. Also possibly for battery, assault, intentional infliction of emotional distress and other common law “torts”. TYPES OF DAMAGES 39 Loss of income General damages for pain and suffering Special damages for medical treatment, retraining, etc. Punitive damages Attorneys fees and court costs Remedial training, etc. 13 BAD FAITH CLAIMS 40 Slander and Defamation Attorneys fees and costs CONCLUSION RE W HAT IS S EXUAL H ARASSMENT 41 SH will not be tolerated It’s about respect and responsibility It’s about productivity It’s about the law 42 ARE THERE ANY QUESTIONS ABOUT WHAT SEXUAL HARASSMENT IS? 14 P REVENTION S TRATEGIES 43 The best claim is the one never filed Comply with posting and handout requirements Educate and train on policies and law Find out if there is a problem Prompt and thorough investigation Remedial action Get professional advice THE COMPANY P OLICY 44 45 Inform employees of the law Inform employees of their rights to complain internally and externally to EEOC and DFEH Alternate reporting channels, including 3rd party “hotlines” Zero Tolerance Re-read your company policy now THE “CULTURE OF S ILENCE ” “It is not my job” “I don’t know what to do” “I am afraid” 15 SPEAK UP! 46 Just say “no” Speak to the harasser directly File complaint internally with HR or other person first Cooperate with investigation Preventing SH is everyone’s responsibility! 47 THE COMPLIANCE S URVEY 48 F ILING A COMPLAINT Ability to file with EEOC www.eeoc.gov and DFEH www.dfeh.ca.gov Also can be found in the phone book. Statute of limitations 300 days with EEOC , 1 year with DFEH…but don’t wait. 16 DFEH ON I NVESTIGATION 49 Fully and effectively investigate. The investigation must be immediate, thorough, objective and complete. Anyone with information on the matter should be interviewed. A determination must be made and the results communicated to the complainant, to the alleged harasser, and, as appropriate, to all others directly concerned. INVESTIGATE ! 50 Don’t ignore, bury or deny Be prompt and thorough Don’t promise confidentiality Communicate on a “need to know” basis COTRAN CASE 51 “Employers can obtain information anyway they think best, always giving fair opportunity to those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial to their view. ” Flexibility and fairness are key. 17 52 E MPLOYEE COMPLAINT F ORM 53 I NVESTIGATION CHECKLIST 54 DFEH ON TAKING A CTION If harassment is proven, there must be prompt and effective remedial action. First, appropriate action must be taken against the harasser and communicated to the complainant. Second, steps must be taken to prevent further harassment. Third, appropriate action must be taken to remedy the complainant's loss, if any. 18 TAKE ACTION 55 56 57 Is it your system? Stern warning Discipline Termination P REVENT RETALIATION Fastest growing claim Guard against “negative filters” Use an ombudsman COMPENSATE VICTIMS Paid time off Counseling Money 19 CONCLUSION 58 Send a message from the top Educate and break past the culture of silence 59 Investigate and take action Discipline appropriately MODEL CASE S CENARIO Read the facts Look at the issues raised. How would you answer them? What steps would you take? 60 TAKE THE SEXUAL HARASSMENT QUIZ 20 QUESTIONS ?? 61 Ask ‘em now Speak to HR [email protected] Or call (800) 234-3304 x1 21 • Changes in the policies or practices of the involved employer • Back pay or promotion • Hiring or reinstatement • Fines or damages for emotional distress from each employer or person found to have violated the law If the Commission finds that discrimination has occurred, it can order remedies including: DFEH serves as a neutral fact-finder and attempts to help the parties voluntarily resolve disputes. If DFEH finds sufficient evidence to establish that discrimination occurred and settlement efforts fail, the Department may file a formal accusation. The accusation will lead to either a public hearing before the Fair Employment and Housing Commission or a lawsuit filed by DFEH on behalf of the complaining party. Employees or job applicants who believe that they have been sexually harassed may file a complaint of discrimination with DFEH within one year of the harassment. Filing a Complaint • once aware of any harassment, the employer took immediate and appropriate corrective action to stop the harassment. • there was a program to prevent harassment; and • the employer had no knowledge of the harassment; such as a lead, supervisor, manager or agent; DFEH-185 (11/07) State of California Department of Fair Employment & Housing In accordance with the California Government Code and ADA requirements, this publication can be made available in Braille, large print, computer disk, or tape cassette as a disability-related reasonable accommodation for an individual with a disability. To discuss how to receive a copy of this publication in an alternative format, please contact DFEH at the numbers above. For more information, contact DFEH toll free at (800) 884-1684 Sacramento area & out-of-state at (916) 478-7200 TTY number at (800) 700-2320 or visit our Web site at www.dfeh.ca.gov For more information, see publication DFEH-159 “Guide for Complainants and Respondents.” Employees can also pursue the matter through a private lawsuit in civil court after a complaint has been filed with DFEH and a Right-to-Sue Notice has been issued. many forms of offensive behavior. The definition of sexual harassment includes • Physical touching or assault, as well as impeding or blocking movements • Sexual comments including graphic comments about an individual’s body; sexually degrading words used to describe an individual; or suggestive or obscene letters, notes, or invitations • Making or using derogatory comments, epithets, slurs, or jokes • Leering; making sexual gestures; or displaying sexually suggestive objects, pictures, cartoons, or posters • Actual or threatened retaliation • Offering employment benefits in exchange for sexual favors • Unwanted sexual advances The Fair Employment and Housing Act (FEHA) defines sexual harassment as harassment based on sex or of a sexual nature; gender harassment; and harassment based on pregnancy, childbirth, or related medical conditions. The definition of sexual harassment includes many forms of offensive behavior, including harassment of a person of the same gender as the harasser. The following is a partial list of types of sexual harassment: The Facts About Sexual Harassment Sexual Harassment Department of Fair Employment and Housing • Take prompt and effective corrective action if the harassment allegations are proven. The employer must take appropriate action to stop the harassment and ensure it will not continue. The employer must also communicate to the com- • Fully and effectively investigate. The investigation must be thorough, objective, and complete. Anyone with information regarding the matter should be interviewed. A determination must be made and the results communicated to the complainant, to the alleged harasser and, as appropriate, to all others directly concerned. • Fully inform the complainant of his/her rights and any obligations to secure those rights. • Develop and implement a sexual harassment prevention policy with a procedure for employees to make complaints and for the employer to investigate complaints. Policies should include provisions to: • Take all reasonable steps to prevent discrimination and harassment from occurring. If harassment does occur, take effective action to stop any further harassment and to correct any effects of the harassment. All employers must take the following actions against harassment: Employers’ Obligations • Employers who do business in California and employ 50 or more part-time or full-time employees must provide at least two hours of sexual harassment training every two years to each supervisory employee and to all new supervisory employees within six months of their assumption of a supervisory position. • All employees should be made aware of the seriousness of violations of the sexual harassment policy and must be cautioned against using peer pressure to discourage harassment victims from complaining. • Distribute an information sheet on sexual harassment to all employees. An employer may either distribute this pamphlet (DFEH 185) or develop an equivalent document that meets the requirements of Government Code section 12950(b). This pamphlet may be duplicated in any quantity. However, this pamphlet is not to be used in place of a sexual harassment prevention policy, which all employers are required to have. • Post the Department of Fair Employment and Housing (DFEH) employment poster (DFEH - 162) in the workplace (available through the DFEH publications line [916] 478-7201 or Web site). plainant that action has been taken to stop the harassment from recurring. Finally, appropriate steps must be taken to remedy the complainant’s damages, if any. the perpetration of acts of hate violence. • the harasser is not in a position of authority, An employer might avoid liability if In addition, if an employer knows or should have known that a non-employee (e.g. client or customer) has sexually harassed an employee, applicant, or person providing services for the employer and fails to take immediate and appropriate corrective action, the employer may be held liable for the actions of the non-employee. Additionally, the law requires employers to take “all reasonable steps to prevent harassment from occurring.” If an employer has failed to take such preventive measures, that employer can be held liable for the harassment. A victim may be entitled to damages, even though no employment opportunity has been denied and there is no actual loss of pay or benefits. All employers, regardless of the number of employees, are covered by the harassment section of the FEHA. Employers are generally liable for harassment by their supervisors or agents. Harassers, including both supervisory and non-supervisory personnel, may be held personally liable for harassing an employee or coworker or for aiding and abetting harassment. Employer Liability • A program to eliminate sexual harassment from the workplace is not only required by law, but is the most practical way for an employer to avoid or limit liability if harassment should occur despite preventive efforts. California from unlawful discrimination in employment, housing and public accommodations, and from The mission of the Department of Fair Employment and Housing is to protect the people of Sexual Harassment Seminar Model Case Scenario Dear Margot, I have been in Public Relations for the past 6 years after graduating from college. I was fortunate to get a position a year ago with one of the top national PR firms with a very prestigious clientele. My job is to manage several accounts, but I have one huge account that is our bread and butter in this office and here is where things start getting sticky. The head of marketing for that client keeps hitting on me. At first, it started as flirting a little at business lunches, and I didn’t pay much attention. As a matter of fact I was somewhat complimented that an older man was so interested in what I had to say. But now he is much more assertive and keeps trying to move our business meetings to evening dinners. Even though I am giving him the ‘no sale’ signals, I can see he won’t give up. I am petrified that I may lose this account, because he always baits me that other firms keep pitching his company but as long as our business relationship moves in the right direction, he will be satisfied sticking with our firm. I have mentioned this to my boss Cindy who is a woman in the Washington D.C. office and she blows it off like that stuff comes with the territory, and I need to learn how to handle it. I am very uncomfortable about this especially since I am scheduled to accompany my client to a trade show out of town, and he has hinted to expect more than just handling the PR event. What can I do? I don’t want to lose the account, for one thing, as part of my compensation I receive a significant bonus based on the amount of revenue this client spends, and yet I don’t want to be pressured into something that I don’t want to do. Not only my job but other jobs could be at stake if we lose this account. I am a nervous wreck and can’t even sleep thinking about this upcoming trade show. Help! Thanks, Joan Questions: 1. What is the first thing you do with Joan? 2. What if Joan refuses to go to the trade show? 3. What do you say to Cindy? 4. Could Joan quit and claim constructive discharge? © 2014 www.hrthatworks.com SEXUAL HARASSMENT TRAINING Employee Review Quiz 1. Sexual harassment is a fault-based scheme and there is no liability where the harasser does not realize the offensive nature of their conduct or there is no intent to harass the victim. a. True b. False 2. Nationwide, less than 2% of all sexual harassment claims are filed by men. a. True b. False 3. A victim of sexual harassment may be entitled to monetary damages even though no employment opportunity was denied and there was no actual loss of pay or benefits. a. True b. False 4. A person who is “hyper-sensitive” and overreacts to any statement made about them does not have a case under the “reasonable person standard”. a. True b. False 5. When investigating a claim of sexual harassment, the legislature and courts have recommended that the employer interview: a. At least the harasser and the accused b. The harasser, the accused and at least two witnesses. c. “Anyone with information on the matter,” no matter how many people that is. 6. Employees that gather around the water cooler to tell dirty jokes and discuss sexual exploits, salacious celebrity gossip or last night’s rerun of Sex and the City may generate sexual harassment claims. a. True b. False 7. An employer may raise as an affirmative defense the fact that an employee unreasonably failed to take advantage of preventative or corrective opportunities provided by the employer to avoid the harm. a. True b. False 8. Which of the following comments can be considered sexual harassment? a. “Your ass looks great" (to a man or a woman) b. “You've been out sick a lot lately. You're not pregnant, are you?” c. “Why are you in such a bad mood today? PMS?” d. All of the above 1 9. In order to succeed on a claim for “hostile environment” sexual harassment, a worker must demonstrate that the harassment caused them to suffer serious psychological injury. a. True b. False 10. The behavior of the alleged victim is relevant to the determination of whether and employee has a successful sexual harassment claim. a. True b. False 11. Marcy’s boss Bob often approaches her workstation and tells her sexually explicit jokes. Marcy does not personally consider Bob’s conduct offensive, but other “reasonable” person certainly would. Can Marcy state a claim for sexual harassment? a. Yes b. No 12. Carla works with Marcy and Bob, and sits in the workstation next to Marcy. Although Bob directs his conversation to Marcy, Carla can easily overhear the sexually explicit jokes. She finds them offensive and becomes uncomfortable whenever she sees Bob approach Marcy’s desk. Carla has asked Bob to stop, but he has ignored her request. Can Carla state a claim for sexual harassment? a. Yes b. No 13. Bob, who owns a small printing company is sued by his former receptionist Tina, who claims she was harassed by a fellow employee. Bob knew nothing about this before the lawsuit was filed. Can Bob's company be held liable for any damages awarded to Tina? a. Yes b. No 14. A harasser can be which of the following? a. Supervisor b. Co-worker c. Customer d. Contract employee e. All of the above 15. Conduct considered to be sexual harassment can come in which of the following forms? a. Physical touching b. Letters and gifts c. Posters and calendars d. E-mail e. All of the above 2 SEXUAL HARASSMENT TRAINING Employee Review Quiz ANSWER KEY 1. B In the case of Lisle v. Warner Brothers, the court stated that “because the FEHA, like Title VII, is not a fault-based tort scheme, unlawful sexual harassment can occur even when the harassers do not realize the offensive nature of their conduct or intent to harass the victim.” 2. B According to recent EEOC statistics, approximately 16% of all sexual harassment claims are filed by men. These claims are filed against both men and women engaging in the harassment. 3. A The very fact they had to suffer from the act of sexual harassment is enough to award monetary damages. An employee does not have to quit or be fired in order to state a claim. 4. B In order to file a successful claim, the claimant must be “reasonable” from both an objective and subjective standpoint. Generally, if the conduct is not severe or pervasive, it does not amount to sexual harassment. 5. C Anyone with information on the matter should be interviewed. Remember to ask about facts, documents, and witnesses. The failure to interview anyone with information may constitute an investigation that is not deemed “thorough” under the law. 6. A If someone takes offense to the sexual banter it would be wise not to continue it for fear of creating a “hostile environment claim.” 7. A An employer can raise as an affirmative defense that the employee failed to take advantage of preventative or corrective opportunities provided by the employer to avoid the harm. One reason it is so important to publicize the policies. 8. D These are some of the stupid things people say. Many individuals, courts and juries will differ on whether or not these statements alone may constitute sexual harassment. The point is, there are no hard and fast guidelines. Sexual harassment is viewed from a “reasonable person” standard, and is open to wide interpretation. 9. B In a U.S. Supreme Court case, the court ruled that it was not necessary for a plaintiff to claim serious psychological injury to support a sexual harassment claim. 10. A The answer is true. The victim’s behavior is viewed from a “reasonable person standard.” For example, if a claimant “overreacts” to an item that she considers to 1 be sexually hostile, she cannot claim discrimination if it is “unreasonable” for her to do so. 11. B Marcy cannot claim sexual harassment because she was not offended by Bob’s conduct. 12. A The fact that Bob’s conversation was intended solely for Marcy does not insulate the company from a claim by Carla, who was offended by the conduct. This is known as hostile environment harassment. 13. B Companies are generally not responsible for sexual harassment by a co-worker, if they did not know about it. The company’s exposure is greatly dependant on its proactive efforts to prevent harassment in the first place and how it deals with any complaints made. For example, the EEOC states The Commission’s long-standing guidance on employer liability for harassment by co-workers remains in effect— an employer is liable if it knew or should have known of the misconduct, unless it can show that it took immediate and appropriate corrective action. 29 C.F.R. § 1604.11(d). 14. E Sexual harassers come in all forms, shapes and sizes. For example, a company which allows it’s customers or vendors to constantly flirt with the receptionist, despite her having expressed her discomfort with the activity, can open itself up to a sexual harassment claim. 15. E Sexual harassment can come in many forms. The only issue is whether or not it is considered to be offensive, severe, pervasive, etc., by a “reasonable person” standard. 2
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