Preventing Workplace Harassment, Discrimination, and Retaliation

 An employer may be liable for employee misconduct if events or conditions relating to the employment caused the misconduct;  An employer may not be liable for employee misconduct if it arises out of a personal dispute;  An employer may not be liable if an employee abuses job-created authority over others for purely personal reasons, even if the abuse occurs on the employer’s premises;  If the employer has and disseminates a policy against harassment, an employer may not be liable for a non-supervisory employee’s acts of unlawful harassment because such acts are not within the course of the individual’s employment; 246 and  Even if a public employer has been dismissed from a lawsuit, it may still be liable if it fails to provide a defense for an employee it believes was not acting within the scope of employment, if the employee agreed to a stipulated judgment stating the employee acted in the course of employment and assigned the victim the rights to seek indemnification from the employer. 247 Farmers Insurance Group v. County of Santa Clara 248 A county was not required to indemnify and pay the defense costs of a deputy sheriff in a sexual harassment lawsuit where the evidence was undisputed that the deputy sheriff “lewdly propositioned and offensively touched other deputy sheriffs working at the county jail.” The California Supreme Court held that deliberate targeting of an individual employee for inappropriate touching and requests for sexual favors is not within the scope of a deputy sheriff’s employment. The California Supreme Court explained that “the goal of eradicating sexual harassment from the public sector is more effectively advanced by denying sexual harassers the right to indemnity than by insulating them from financial responsibility for their own misconduct.” It declined, however, “to adopt a bright line rule that all sexual harassment falls outside the scope of employment as a matter of law under all circumstances.” A public employer may defend and indemnify an employee in a civil suit alleging harassment if the entity determines that the harassment charges are not well founded. A public entity’s agreement to provide defense and indemnity in such instances does not affect its right to refuse to defend other employees whose acts of sexual harassment are undisputed. The public employer should study the circumstances of each case and seek legal counsel in determining whether to defend and indemnify an alleged unlawful harasser. Case Study on Obligation to Defend and Indemnify

Preventing Workplace Harassment, Discrimination, and Retaliation ©2019 (s) Liebert Cassidy Whitmore 61