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Federal Law. Under federal law, "harassment" is defined to mean "a course of conduct directed at a specific person that causes substantial emotional distress in such person and serves no legitimate purpose." (18 U.S.C. § 1514(c)(1).)

California Law. California defines "harassment" as unlawful violence as follows (Code Civ. Proc. § 527.8):

“Harassment” is a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose. The course of conduct must be that which would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress.

“Course of conduct” is a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose, including following or stalking an employee to or from the place of work; entering the workplace; following an employee during hours of employment; making telephone calls to an employee; or sending correspondence to an employee by any means, including, but not limited to, the use of the public or private mail, interoffice mail, facsimile, or computer email.

“Credible threat of violence” is a knowing and willful statement or course of conduct that would place a reasonable person in fear for their safety, or the safety of their immediate family, and that serves no legitimate purpose.

FEHA Requirements. Under California's Fair Employment and Housing Act (FEHA), which is enforced by the Civil Rights Department, an employer may also be responsible for the acts of non-employees with respect to sexual harassment of employees and other specified persons if the employer or its agents or supervisors knew or should have known of the conduct and fails to take immediate and appropriate corrective action. It makes associations potentially liable for the acts of non-employees with respect to harassment activity.

Anti-Harassment Training. A business with five or more employees must ensure their supervisory employees undergo a 2-hour training class and non-supervisory employees require one hour of training. This must be done every two years. There is disagreement on whether this applies to boards of directors.

  1. Does Not Apply. Sexual harassment training requirements probably do not apply to boards of directors. The reason is that boards should NOT have any direct supervision over employees. Their role is to meet with each other and make policy decisions, approve contracts, approve the transfer of funds, etc. The manager should oversee operations and supervise employees and vendor activities. 
  2. Should Take Training. Boards should take an online training course. They are free and help directors better understand how employees should be treated, and how to respond to complaints. 

Restraining Order. Persons subjected to harassment and threats of violence can seek a restraining order. For more information about restraining orders, see the California Courts Guide on Civil Harassment.

Effective October 14, 2016, boards of directors are required to address members' claims of harassment on the basis of race, color, religion, national origin, sex, familial status, and disability. This includes harassment by other residents, board members, managers, and vendors. The law requires that boards take prompt steps to investigate and end harassment. (Code of Fed. Reg. §100.7(a)(1)(iii).)

Investigate Complaints. When harassment is alleged, boards must investigate the complaint. To determine if harassment is taking place, boards can evaluate the nature of the unwelcome conduct, the context in which the incidents occur, the severity, scope, frequency, duration, and location of the conduct, and the relationships of the people involved. It does not require that the complaining party suffer psychological or physical harm, only that the alleged harassment occurred.

Harassment Policy. To satisfy federal and state regulations and reduce exposure to litigation, boards should adopt anti-harassment/discrimination and neighbor dispute policies for their associations. They should contain the following:

  • Definitions of harassment, neighbor-to-neighbor disputes, protected classes, and third parties.
  • Description of the association's policy against harassment and limitations on the association's authority.
  • Procedures for reporting harassment.
  • Policy for investigating disputes/harassment.
  • Potential actions related to findings.

Recommendation: Whenever an employee or board member claims they are the target of harassment, boards have a duty to investigate and take appropriate action. Before doing so, the Board should contact legal counsel to determine how best to investigate the complaint and the best course of action to take.

ASSISTANCE: Associations needing legal assistance can contact us. To stay current with issues affecting community associations, subscribe to the Davis-Stirling Newsletter.

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