Employer Responsibilities to Prevent Harassment In the Workplace In California

In Carrisales v. Department of Corrections (1999) the court concluded that although section 12940, subdivision (h)(1) prohibits any "person" from harassing an employee, the statute imposes on the employer the duty to take all reasonable steps to prevent this harassment from occurring in the first place and to take immediate and appropriate action when it is or should be aware of the conduct. "Consistent with the California Fair Employment and Housing Act's primary concern with unlawful employment practices, it does not also impose personal liability for harassment on nonsupervisory coworkers." (Carrisales, supra, 21 Cal. 4th at p. 1140.) The Supreme Court explained: " 'When the workplace is permeated with discriminatory intimidation, ridicule and insult that is " 'sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment,' " the law is violated.' ( Kelly-Zurian v. Wohl Shoe Co. (1994) 22 Cal. App. 4th 397, 409 [27 Cal. Rptr. 2d 457], quoting Harris v. Forklift Systems, Inc. (1993) 510 U.S. 17, 21 [114 S. Ct. 367, 370, 126 L. Ed. 2d 295].) If the harasser is a nonsupervisor, and the employer takes immediate and appropriate corrective action when informed of the conduct, this standard is not met." ( Carrisales, supra, at p. 1137.) Proceeding with its analysis, the court distinguished between the unlawful acts of discrimination by an employer, or harassment by an individual supervisor or coworker: "Contrary to plaintiff's argument, Reno v. Baird [(1998)] 18 Cal. 4th 640 [76 Cal. Rptr. 2d 499, 957 P.2d 1333], does not compel a contrary conclusion. That case involved solely the question of individual liability for discrimination. The court expressed no opinion 'regarding individuals' liability for harassment.' ( Id. at p. 645, fn. 2.) To support our conclusion that only the employer is liable for discrimination, we noted the difference in the statutory treatment of discrimination and harassment. ( Id. at pp. 644-645.) Moreover, the law as to sexual orientation harassment is not far behind. As directed by Carrisales, supra, 21 Cal. 4th 1132, we must focus upon the particular statutory language involved independently to decide the harassment and discrimination issues. ( Id. at p. 1137.)