Who Can Be Held Liable In A Sexual Harassment Case?
Whomever is engaging in the unwanted harassing conduct is always liable for their own conduct towards the victim. That liability may stem from the traditional common law causes of action, such as assault or battery. There may be a sexual assault claim under the civil code, which is similar to the common law claims, or it may be a full-blown Fair Employment and Housing Act claim under the Government Code for unwanted harassing conduct. At all times, the harasser is liable for the harasser’s own conduct.
Most of the time, the harasser is going to be judgment proof. They are not going to have any money. They might not have any insurance, therefore even if we were to win a case in front of a jury and get an award, there is no way to collect on that. These cases are very expensive, so most lawyers won’t take a case unless they have a viable defendant that can pay a judgment. The most obvious option for liability is the employer, but there also may be issues like a dual employer situation, where a temporary agency sends workers to a warehouse.
The temporary agency is going to be deemed the employer but the employer may also be considered to be the warehouse, and that gets into a thorny area of law. How do you know whether some entity is actually an employer for the purposes of imposing liability? Now, we get into concepts where employer is defined in the government code or maybe the employer is defined under a common law test. We have the integrated enterprise test and the Vernon factors; it’s not a settled area of law and it’s a case by case base analysis. We can go after the harasser, we can go after the employer, and we can also go after others who may have participated in some way, in either orchestrating the scheme, covering it up, or things of that nature.
The other aspect of this is that sometimes we are now able to go after businesses that may violate the law under what’s called the Unruh Act. If they are a business providing services and they engage in improper conduct, we might be able to sue them, even though there is no employment relationship there. This is a growing area of the law where there is now starting to become scrutiny on what constitutes someone who can be sued. It’s technical and it’s changing, so it is always best to talk to a lawyer about this area of the law.