Recently, two Courts of Appeal in California weighed in on the issue of sexual harassment—the Fourth District, Division Three and Second Division, Division Four—both deciding differently on the issue. With a divided court, in the Fourth District matter, (Brennan v. Townsend & O’Leary (Cal. App. Fourth Dist., Div. 3; October 18, 2011) 199 Cal.App.4th 1336) a female executive at an advertising agency, who prevailed at trial, lost on the appeal of her gender harassment claim.
In Brennan, the agency’s owner dressed as Santa at holiday parties and had women employees sit on his lap, he wore a Santa hat with “bitch” across the brow, talked with the plaintiff about her sex life using a certain hand gesture and asked her whether she “got any.” One of the employees brought a plastic penis to the office and executives sometimes referred to women clients by a word that begins with a “c.” One client was called “a demanding, unconstructive, counter-productive, mindless, shitty-ass bitch” in an agency email by an executive. The same executive sent another email which called plaintiff “one big-titted mindless one.”
Plaintiff complained to her supervisor as well as the head of the agency.
The majority opinion concluded there was insufficient evidence that the harassing behavior was pervasive or severe enough to create a hostile work environment. The evidence was insufficient to show “severe” harassment based on gender because the employee was never assaulted, subjected to unwelcome physical contact or verbal abuse, threatened, propositioned, or subjected to explicit language directed at her or at anyone else in her presence. The evidence was also insufficient to show “pervasive” harassment based on gender. An e-mail referring to the employee was the only incident directed at her and was not intended to be shared publicly. The employee witnessed only three incidents of gender-based conduct involving coworkers over a span of several years. She did not present evidence that intrusive questions from her employer offended her. Other instances of sexual harassment that she discovered after she received the e-mail did not contribute to a hostile work environment because she did not have any knowledge or perception of them until she investigated. Finally, incidents of claimed retaliation were not acts of harassment based on gender.
The dissent disagreed with the majority opinion in “that the nonsexual acts of retaliation that took place could not be considered discrimination due to gender;” stating, “from the moment of her complaint, the atmosphere surrounding her job changed completely” and she became a marked woman, and that “the non-sexual acts of retaliation that took place” should be considered discrimination due to gender. Brennan v. Townsend & O’Leary 199 Cal.App.4th at 1359-60.
In the Court of Appeal Second Division, Division Four matter, (Fuentes v. Autozone, Inc. (Cal. App. Second Dist., Div. 4; November 16, 2011) 200 Cal.App.4th 1221) during a five week period, when a store manager was on leave, a 21-year-old cashier was subjected to rumors she had a sexually transmitted disease and that she and a co-worker were having a sexual relationship and suggestions she could make more money as a stripper. In one incident, she was turned around by the assistant manager who said to her: “Show your butt to the customers and that way you can sell more.”
In Fuentes, the Second District Court of Appeal rejected defendant, Autozone’s claim that plaintiff’s testimony was inherently improbable and found that substantial evidence supported the jury’s verdict. Plaintiff’s testimony related several incidents of inappropriate behavior and comments by her supervisors. The evidence at trial established that all the incidents and comments about plaintiff, including a directive that she display her buttocks to customers to increase sales, rumors that plaintiff had sexually transmitted herpes, and profane speculation about a sexual relationship between plaintiff and a coworker, were focused on her gender.
Plaintiff was made the object of sexual humiliation and exploitation for the entertainment of managers, employees, and customers. When an acting manager was confronted by plaintiff about the herpes rumor, he threatened to fire her if she raised the issue again. While these events occurred over a compressed period of time, the court found substantial evidence that the harassment suffered by plaintiff was both pervasive and severe. The evidence established that plaintiff found the conduct of her supervisors offensive. The court concluded that a reasonable person would share that perception.
The Court of Appeal affirmed judgment in favor of the plaintiff, noting the workplace was “permeated with discriminatory intimidation, ridicule and insult.” Fuentes v. Autozone, Inc. 200 Cal.App.4th at 1237.
Perhaps the best way to reconcile the two decisions is to first look at the pervasiveness and severity of the discriminatory behavior complained of. First, consider the basis of the behavior and whether it is indeed “gender” based. Also, whether the complaining person was aware (e.g. had knowledge) of the behavior at the time and was offended by it. Finally, would a reasonable person be similarly offended by the same behavior(s). Based upon these multiplicity of factors one can best evaluate if they have a sexual harassment claim, or if a business and/or its supervisors are being wrongfully accused of same.
Contact California business attorney, Mark Mellor if you are involved in a sexual harassment claim.
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