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STATE SECURES $150,000 SEXUAL HARASSMENT SETTLEMENT

Bar owner allegedly sexually assaulted bartender.

On March 23, 2010, the California Department of Fair Employment and Housing (“DFEH”) announced the $150,000 settlement of a lawsuit filed in Kern County Superior Court against the owners of Esquire Cocktail Lounge in Bakersfield, California, for workplace sexual harassment.

The Department alleged that bar owner David Rubio sexually harassed and assaulted a female bartender, Christina McQuiston, including taking pictures of her without permission, objectifying her body and physically touching her in a sexual manner. The Department also accused Rubio of grabbing and sexually assaulting McQuiston while she was alone with him in the back office placing glasses in cold storage. When McQuiston broke away from Rubio and ran into the bar for help, Rubio allegedly shouted expletives at McQuiston and told her she was fired.

In its statement regarding the settlement, DFEH Director Phyllis Cheng stated that “this case illustrates the Department’s commitment to vindicating civil rights, even in the face of bankruptcy. Egregious violations of employee rights will not be tolerated and must be corrected.”

Although the owners of the bar filed for bankruptcy in November 2008, as a condition of settlement, they agreed not to challenge the $150,000 claim for damages McQuiston filed with the bankruptcy court, and which has been recorded as a stipulated judgment in the department’s Kern County Superior Court case. The DFEH anticipates that McQuiston will receive over $70,000 from the owner through bankruptcy payouts.

The settlement also required Rubio to undergo two sessions of gender counseling or sensitivity training and post a notice in local newspaper stating that a lawsuit was filed against him for sexual harassment. If he should start a business before March 31, 2011, Rubio is also required to develop and post a policy prohibiting sexual harassment in the business he owns and provide sexual harassment prevention training for all employees and managers. In settling the case, Rubio did not admit liability.

Although Rubio’s behavior may seem obviously egregious, any inappropriate sexual conduct in any form could result in a similar judgment against the employer. To avoid this type of liability, employers should ensure that all management staff are trained regarding anti-harassment and discrimination laws and business owners should participate in the training as well. Discipline employees who fail to abide by anti-harassment policies or use inappropriate sexual conduct, even if they say they are just “joking”. In addition, create employment policies and practices that clearly state what is expected of employees and be consistent in applying the rules.

If your company is in need of an employee handbook, updated employment policies or training, please contact us at info@mitzelgroup.com.