©2024 Seyfarth Shaw LLP www.seyfarth.com 2024 Cal-Peculiarities | 167 prevention, retaliation, and reporting resources using the DFEH-provided on-line training course, and (2) certify to the Labor Commissioner that the training has been completed.156 Construction and temporary worker training. Sexual harassment training requirements extend to seasonal, temporary, or other employees hired to work for less than six months, and special training provisions apply for construction industry employers that employ workers under a multiemployer CBA.157 “Implicit bias” training for certain medical professionals. By January 1, 2022, continuing education for physicians, surgeons, nurses, and physician assistants must include courses on implicit bias.158 Actions for failure to prevent discrimination or harassment. A California employee has no remedy if an employer fails to take all reasonable steps to prevent discrimination and harassment from occurring, unless actionable harassment or discrimination actually occurred.159 But the employer risks prosecution by the DFEH for a violation of 12940(k), even in the absence of any actionable harassment or retaliation.160 Allegations of “inadequate” investigations. Plaintiffs suing California employers have, with judicial blessing, pointed to alleged inadequacies in employer investigations as proof that a resulting employment decision was discriminatory.161 The Court of Appeal has indicated that a plaintiff’s expert can testify on whether an employer in a given case has materially deviated from its own personnel standards and practices with respect to an investigation.162 6.5.4 Personal liability for perpetrators Supervisors harassing. In America generally, workplace harassment leads to statutory liability for the employer, not to personal liability for the individual perpetrator, although the perpetrator may be subject to liability under common law torts such as battery, false imprisonment, and infliction of emotional distress. In California it’s different. The FEHA imposes personal liability on individual supervisors who perpetrate harassment.163 Co-workers harassing. The FEHA, going beyond federal law, makes harassing supervisors personally liable. And California goes still further. The FEHA makes even non-supervisory co-workers personally liable for acts of harassment.164 6.5.5 Employer liability for supervisor’s harassment Vicarious employer liability. Where a hostile environment is created by a “supervisor” (someone with substantial independent authority over a subordinate’s employment status), California imposes automatic liability on the employer (i.e., liability without regard to notice or fault).165 Federal law gives employers an affirmative defense (the “Ellerth/Faragher” defense) in this kind of case, permitting the employer to avoid liability if (1) it took reasonable steps to prevent and correct harassment and (2) the plaintiff unreasonably failed to use those steps.166 In California it’s different. The California Supreme Court has refused to recognize the Ellerth/Faragher defense in a harassment case brought under FEHA.167 In place of the federal Ellerth/Faragher defense, California recognizes a limited avoidable-consequences defense, which permits employers to reduce damages (but not avoid liability) if the employer proves that (1) it took reasonable steps to prevent and correct harassment, (2) the plaintiff unreasonably failed to use measures the employer provided, and (3) the plaintiff’s reasonable use of those measures would have prevented some or all of the harm.168 Broad definition of “supervisor.” The U.S. Supreme Court has interpreted the analogous federal law (Title VII) to call for a narrow definition of “supervisor,” encompassing only those management-level employees who “are empowered” to take “tangible employment actions” against lower-level employees.169 The California statutory
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