Anti-Harassment Policy Basics for San Diego Businesses

Every San Diego business with employees must have a company anti-harassment policy approved by the President/CEO of the business. It is actually preferable that the anti-harassment policy be approved by the Board of Directors or Managing Committee and it is important that the policy be explicitly applicable to upper management. In other words, the same policy for everyone working for your business. A good San Diego corporate attorney can help draft your anti-harassment policy or update your current version. Note that anti-harassment policies are different than anti-discrimination policies. The two are related, but your business needs to have both. Here are the basics for anti-harassment policies.

Why You Need an Anti-Harassment Policy

In simple terms, harassment is prohibited by the California Fair Employment and Housing Act. See Cal. Gov. Code, § 12900 et seq. (the “Act”). To comply with the Act, you need to prohibit harassment by your staff and management and also avoid employee-on-employee harassment. If your business engages in or allows harassment, you will be subject to lawsuits by current and former employees, and administrative actions by the State of California. Defending against the lawsuits and/or the administrative actions will be expensive. Furthermore, various policies — including anti-harassment policies – are often a prerequisite for business insurance covering the costs of defending against employee lawsuits and administrative actions.

Who is Protected?

Your anti-harassment policy must protect all those who fall into the categories protected under the law, which include race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status.

Who Must be Policed?

Section 12940(j) of the Act makes it unlawful to “harass an employee” on the basis of his or her inclusion in the protected classifications. “Employee” is a broad category that includes interns, unpaid workers/volunteers, independent contractors and, basically, anyone at your place of employment. Your business is liable for the harassment committed (i) by your managers, (ii) by your employees, and (iii) by nonemployees if upper management and/or supervisors “know or should have known of this conduct and fails to take immediate and appropriate corrective action.” With respect to nonemployees, the Act specifically provides that an extra factor is to be considered, which is the “extent of the employer’s control and any other legal responsibility that the employer may have with respect to the conduct of those nonemployees …” The Act requires that a business “shall take all reasonable steps to prevent harassment from occurring.”

What Should be in Your Anti-Harassment Policy?

From the foregoing, your written anti-harassment should contain the following basics

• A list of those protected
• A statement that any sort of harassment is prohibited, a definition, and examples of prohibited harassment
• That the policy applies to all employee, volunteers, and nonemployees
• A statement of how employees should the file a complaint, including to whom any complaint should be directed
• Description of how complaints of harassment will be investigated
• Delineation of corrective actions to be taken if there is a claim of harassment including the fact that harassment will lead to termination if harassment in violation of the Act is demonstrated
• Signature page for the employee to sign indicating that he or she is aware that he or she cannot engage in harassment, that the employee will NOT engage in harassment and that, if the employee does engage in harassment, then he or she can be fired

Contact San Diego Corporate Law Today

If you would like more information, contact attorney Michael Leonard, Esq., of San Diego Corporate Law. Mr. Leonard can be reached at (858) 483-9200 or via email. Mr. Leonard has been named a “Rising Star” four years running by SuperLawyers.com and has just been named “Best of the Bar” by the San Diego Business Journal for 2018. Mr. Leonard can help draft and/or review company policies and procedures and can help with any other legal needs of your business.

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