Part of being successful in business is being able to predict the future. What will your customers want to buy? Are raw materials cheaper now than they’re going to be later? What will your competitors do? But a recent California appellate case says that employers do not have to anticipate which employees will commit sexual harassment.
In Blanchard v. Pier 1 Imports (U.S.), Inc., 1st Appellate District, No. A126243, October 14, 2010 (unpublished), Pier 1 hired a convicted and registered sex offender, Richard Clapham. Clapham sexually assaulted a female co-worker (Blanchard), who sued Pier 1 for sexual harassment. Under California’s Fair Employment and Housing Act (specifically Cal. Gov’t Code sec. 12940(j)(1)), an employer is liable for harassment by a non-supervisory co-worker if the employer knows of the conduct (or reasonably should have known) and fails to take remedial action. Here, the court ruled that an employer’s duty to take remedial action only arose once harassment occurred. In other words, Pier 1 was not liable under that statute for failing to anticipate the harassment and take steps to prevent it before it occurred.
Should this case be interpreted as a green light to start hiring up all the registered sex offenders you can find? I wouldn’t advise that. Nor does this change the fact that employers can substantially decrease their exposure by having appropriate policies, procedures, and training in place. But it is somewhat encouraging that employers in California aren’t required to look into the future to see who’s likely to commit harassment.