Preventing Workplace Harassment, Discrimination, and Retaliation

took no action to stop the co-worker’s conduct. Birschtein brought suit against her employer for sexual harassment. The trial court granted summary judgment for the employer, stating that staring did not constitute sexual harassment as a matter of law. A California Court of Appeal disagreed and found that summary judgment was not appropriate because there existed a triable issue of fact as to whether the staring constituted intimidation and hostility. Moreover, the Court found that managerial failure to intervene effectively to prevent or end sexual harassment in the workplace by a fellow employee can amount to a ratification of the misconduct for which the employer may be held liable.

I NTERNAL A DMINISTRATIVE R EMEDIES

Section 14

Even if a public employer has established its own administrative remedies for resolving complaints of discrimination, harassment, or retaliation, a public employee is free to bypass that process and file a claim directly with the EEOC or the DFEH. 216 Even though an employee is not required to exhaust the employer’s own internal administrative remedies before filing with the DFEH or EEOC, failure to do so may be a basis upon which a public entity can argue the “avoidable consequences” doctrine to reduce damages. 217 Employees who wish to file a lawsuit seeking money damages against their public employer and/or their public employee co-workers, supervisors, or elected officials must ordinarily file a Tort Claim with the public employer within six months of the alleged wrongful conduct. 218 Public employees who wish to sue their employers under Title VII, the ADEA, the ADA, or the FEHA do not need to file a Tort Claim. 219 Instead, they must file a claim with either the EEOC or the DFEH. 220 In California, the EEOC and the DFEH have a work-share agreement, so that when a complainant files with one agency, the complainant is deemed to have filed with the other agency as well. 221

Once you receive notice from the EEOC or DFEH of a charge of discrimination, make sure that any documents potentially related to the charge are maintained and not destroyed.

LCW Practice Advisor

Preventing Workplace Harassment, Discrimination, and Retaliation ©2019 (s) Liebert Cassidy Whitmore 55