Guest Commentary: Facts on harassment suit

The statements attributed to Professor David Levine in the July 31 edition (“Harassment suit looms”), which the Argus-Courier may have selected from a more complete explanation by Professor Levine, leave an incomplete and misleading impression concerning liability for sexual harassment in the work-place and the steps a victim of sexual harassment must take to prevail on his or her claim.

First, no public employee, including a city employee, needs to file a sexual harassment claim against a public entity within 180 days of leaving the agency. Instead, public employees, like employees working for private employers, who have been subjected to sexual harassment, must file a charge with the California Department of Fair Employment and Housing (“DFEH”) within one year of the of sexual harassment about which they complain. Moreover, if they have been subjected to an ongoing series of incidents, any one of which may not rise to the level of harassment necessary to be actionable, but taken together have created a hostile work environment, the employee must file a charge with the DFEH within one year of the most recent incident of sexual harassment.

Second, the California Legislature amended the California Fair Employment and Housing Act to make clear that supervisory and non-supervisory perpetrators of sexual harassment are personally liable for the sexual harassment they inflict on a subordinate or a co-worker. Accordingly, Waters’ legal team will not have to prove that her superiors knew about the harassment and failed to take appropriate corrective action in order to hold the individual perpetrators liable. If the perpetrators are found personally liable, the city may end up paying any judgment against the individual perpetrators under a separate statute requiring the city to indemnify and defend its employees for claims arising during the course of their employment. As a result, the city has an incentive to settle meritorious claims against its employees, even if supervisors were not aware of the harassment until Waters resigned and filed her claim.

Third, in a number of sexual harassment cases in which the employee failed to complain about the harassment to management and the employer denied knowledge of the incidents that the plaintiff alleged created the hostile work environment, juries have found that the harassment was so pervasive that the employer must have known and simply ignored what was obvious and, therefore is liable for the sexual harassment inflicted by one or more of its employees.

Finally, if any of the individuals in Ms. Waters case who subjected her to sexual harassment was a supervisor, the city will be strictly liable for that harassment, meaning the city will be liable even if management was not aware of the supervisor’s harassment.

While I am confident that City Attorney Eric Danly will provide the City Council with complete and accurate advice concerning the City’s potential exposure concerning Ms. Waters’ claims, I hope you will publish this letter so any other victims of sexual harassment among your readers are not discouraged from pursuing their claims by the comments attributed to Professor Levine in the July 31 article concerning Ms. Waters’ claims.

(Lawrence King is an attorney living in Petaluma)