State and federal laws require employers to take appropriate steps to prevent and correct discrimination and harassment.  Harassment is unwelcome conduct based on a protected characteristic, such as age, disability, race, religion, or sex.  Harassment is unlawful if the offensive conduct is “severe or pervasive” enough to create an unlawful, “hostile work environment.”

There are several steps employers should take to prevent harassment from occurring.  First, implement a clear, written policy that prohibits discrimination, harassment, and retaliation. (See Cal. Code of Regs. section 11023 for the requirements of a legally complaint policy.)  Employers must also establish procedures for employees to report harassment, and the employer’s response.  Additionally, employers should provide training to managers and supervisors on these policies and procedures.

Appropriate action to correct harassment starts with an effective response to a report.  Employers have a duty to conduct prompt, thorough, and fair investigations of complaints.  It may be necessary to take intermediate steps before completing the investigation to ensure further harassment does not occur.  The employer must take prompt and appropriate corrective action if it determines harassment occurred. The action must be designed to stop the behavior, correct its effects on the employee, and prevent further harm.

An employer’s insufficient response can lead to liability.  For example, employers may be liable for harassment by a co-worker or non-employee if the employer knew, or should have known, about the harassment and failed to take appropriate corrective action.  However, under California law, employers are strictly liable when a supervisor harasses an employee. 

A new Ninth Circuit decision underscores the importance of the employer’s response to harassment complaints.  In Fuller v. Idaho Department of Corrections, the court determined that an employer’s response itself can contribute to a hostile work environment, even if the underlying conduct did not. 

Female employees at the Idaho Department of Corrections (the “IDOC”) submitted sexual harassment complaints against another IDOC employee, Herbt Cruz.  However, Cruz was never disciplined.  Later, Cruz was placed on administrative leave because he was under criminal investigation for a rape.  Management called a staff meeting to advise employees that Cruz was on administrative leave because of a confidential investigation, and stated that the IDOC “looked forward” to Cruz’s return.

While the original investigation was ongoing, Cruz allegedly raped his co-worker, Cynthia Fuller, but outside the workplace.  After learning of Fuller’s rape, a manager told Fuller that Cruz “had a history of this kind of behavior.”  The next day, the same manager sent an email to IDOC staff telling them to “feel free” to contact Cruz and “give him some encouragement.”

Fuller requested paid leave while she was recovering from the rape, per an IDOC policy that permitted paid administrative leave “when a manager (or designee) deems it necessary due to an unusual situation….”  The IDOC denied the leave request, explaining that “only employees under investigation are eligible for administrative leave” and her situation was not “unusual.” 

Fuller returned to work, only to be ostracized by co-workers.  Although Fuller obtained a civil protection order prohibiting Cruz from coming within 1000 feet of her, she did not feel safe coming to work because she believed Cruz could walk into the building and no one would call the police.  The IDOC denied Fuller’s request to inform employees of the civil protection order, explaining they had to be “conscious of [Cruz’s] rights.”  Fuller resigned in November.  Cruz resigned in December, after the IDOC notified him that they intended to terminate his employment.

Fuller sued the IDOC. She claimed in part that her employer’s response to her rape – “effectively punishing her for taking time off, while both vocally and financially supporting her rapist” – contributed to a hostile work environment.  The court acknowledged that the rape itself did not create a hostile work environment because there was no nexus to employment.  However, the court agreed that a reasonable juror could conclude that an “objective, reasonable woman” would find her “work environment had been altered” because the employer “effectively condoned” the rape. 

The employer’s knowledge of previous complaints was evidence of the employer’s “general attitude of disrespect toward [its] female employees.”  And the employer’s response created the perception that Cruz’s reputation was more important to management than Fuller’s safety.

There are several key takeaways from this case for employers to consider.  First, although employers are not responsible for conduct between co-workers that have no connection to the workplace, these issues can create potential liability at work if not addressed. 

Second, employers should emphasize in harassment prevention training that supervisors must be careful about what they say about the accuser and the accused.  Although a person accused of misconduct is may be entitled to fairness, the victim of the harassment should not be treated with less respect.

Third, employers should consider an employee’s safety concerns when deciding whether the circumstances are “unusual” enough to warrant a paid administrative leave.  As explained above, employers may need to take intermediate steps to ensure further harm does not occur.

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