©2023 Seyfarth Shaw LLP www.seyfarth.com 2023 Cal-Peculiarities | 165 requires larger employers to train supervisors (and rank-and-file employees) on the prevention of sexual harassment.122 The FEHA does not define harassment, but administrative regulations cite examples of harassment, such as “verbal,” “physical,” and “visual” harassment, as well as “unwanted sexual advances.”123 6.5.2 Difficulties in distinguishing harassment from management activity Because individuals in California can be personally liable for harassment, and because employers can be liable for supervisory harassment even if the employer was unaware of the harassment and could not have prevented it, California plaintiffs try to characterize management actions as “harassment” whenever they can. For example, in Roby v. McKesson Corp.124 a FEHA plaintiff suffering from panic attacks and suing for disability harassment claimed that her supervisor had unlawfully “harassed” her by (1) giving her bad job assignments, (2) ignoring her at staff meetings, (3) unfairly reprimanding her, (4) leaving her off a personal gift list, (5) making her document all telephone calls, and (6) counseling her about her body odor. The jury awarded $1 million in damages for “harassment.” The Court of Appeal reversed this part of the judgment, explaining that “most of the alleged harassment here was conduct that fell within the scope of [the supervisor’s] business and management duties. … While these acts might, if motivated by bias, be the basis for a finding of employer discrimination, they cannot be deemed ‘harassment’ within the meaning of FEHA.”125 The California Supreme Court, however, reinstated the harassment verdict, on a rationale that official employment actions can support a claim of unlawful harassment.126 In doing so, the Supreme Court undermined the effect of its earlier decision, in Reno v. Baird,127 that individuals are not personally liable for making official employment decisions on behalf of the employer. 6.5.3 Duty to prevent and correct harassment, including mandatory training Statutory language establishing a general duty to prevent. California employers must “take all reasonable steps necessary to prevent … harassment from occurring,”128 and must take “immediate and appropriate corrective action” when harassment occurs.129 Judicial language on the employer duty to investigate. The Court of Appeal has stated, “FEHA goes even further than the federal statute by requiring that supervisors ‘take immediate and appropriate corrective action’ when harassment is brought to their attention.”130 The Court of Appeal quoted this legislative note to Government Code section 12940 (not part of the Code but part of its legislative history.) It is the existing policy of the State of California, as declared by the Legislature, that procedures be established by which allegations of prohibited harassment and discrimination may be filed, timely and efficiently investigated, and fairly adjudicated, and that agencies and employers be required to establish affirmative programs which include prompt and remedial internal procedures and monitoring so that worksites will be maintained free from prohibited harassment and discrimination by their agents, administrators, and supervisors as well as by their nonsupervisors and clientele.131 The Court of Appeal thus held that a supervisor could reasonably believe that he was engaging in a statutorily required (and thus protected) activity when he protested harassing conduct, even though the conduct was not severe or pervasive enough to be actionable.132 DFEH fact sheet. California employers must give each employee an official DFEH fact sheet or equivalent information to inform the employee regarding: the illegality of sexual harassment,
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