Finding the Facts - Disciplinary and Harassment Investigation

witness that failed to intervene on the complainant’s behalf and failed to independently report the misconduct to a supervisor. 168

Likewise, the Tenth Circuit held that an employer took immediate and corrective action, and therefore avoided liability, because the employer immediately suspended the alleged harasser pending the completion of the investigation and ultimately demoted the alleged harasser based on the findings of the investigation. 169 But the Ninth Circuit found that an employer failed to take immediate and appropriate corrective action where a correctional officer repeatedly complained about inmates exposing themselves to her and screaming sexually derogatory obscenities to her. The employee complained of the behavior to numerous superiors who made no effort to stop the behavior and, in fact, intervened when the employee attempted to discipline the inmates for the exhibitionist behavior. 170 The Tenth Circuit also held that an employer failed to take immediate and appropriate corrective action because the employer did not investigate the complainant’s allegations until six months after the misconduct occurred, and only after another employee reported misconduct by the same alleged harasser. The Court determined that the employer, and in particular the complainant’s supervisor and upper-management, knew or should have known of the alleged harassment when the complainant first reported the misconduct to her direct supervisor. 171 The California Court of Appeal reversed the jury’s verdict for the employer because the employer was aware that the employee was sexually harassed but took no preventive action. Under FEHA, employers may be liable if nonemployees sexually harass an employee, and the employer knows or should have know of the conduct and fails to take immediate and appropriate corrective action. The jury found that the halfway house residents sexually harassed the plaintiff and that plaintiff’s supervisors were aware of the hostile work environment. However, there was no evidence that plaintiff's supervisor or employer took any corrective action. 172 As another example, a hotel housekeeper asserted viable claims under FEHA when she claimed her employer failed to take reasonable steps to prevent a trespasser from sexually harassing and assaulting her. 173 Under the FEHA, an employer may be liable for sexual harassment committed by a non- employee. Liability may exist if the employer, or the employer’s agents or supervisors, know or should have known of the non-employee’s harassing conduct, and fail to take immediate and appropriate corrective action. To determine liability, a court will consider the extent of the employer’s control over the non-employee, and any other legal responsibility for the non- employee. The FEHA also creates liability for failure to prevent sexual harassment if an employee proves a claim of harassment and also proves that the employer failed to take all reasonable steps necessary to prevent harassment from occurring. 174 In a 2017 Ninth Circuit decision, the federal appellate court reversed a district court’s ruling granting summary judgment – in part – because a jury could reasonably conclude that the employer failed to take effective remedial measures. 175 Employee was allegedly harassed by a

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