Was It Sexual Harassment?

I present to you the following facts:

A board member asks the executive director of a non-profit agency if she is married. When the ED says no, the board member replies, “So you’re the aging nun.” The comment caused the ED to feel degraded.

A week later the ED encountered the same board member at a hotel during a victory party for a recent electoral candidate. When the ED said hello to the board member, the board member took the ED’s arm, pulled her to him so that the sides of their bodies were touching and asked, “Did you come here to lobby me?” The ED responded by pointing out that staff members do not lobby and the board member referred to two women standing next to him saying, “Why not? These two women are lobbying me.” The board member also told the ED she had a nice suit and nice legs, and looked up and down at the ED.

When the ED complained to a different board member regarding the incident, the ED was told to be careful and that she needed to “win him over.”

Less than a month later, the original board member approached the ED in the reception area of the office, put his arm around the ED and said the ED looked nice. The board member then walked over to a map of the city asked the ED where she lived. The ED hesitated and the board member put his arm around the ED again and rubbed the ED’s breast with his arm. When the ED pushed the board member away and tried to talk about the purpose of her visit, the board member interrupted her saying “Why the [delete expletive] do you have to do something special for Mexicans?”

The jury found that the ED was subject to unlawful sexual harassment. Do you agree with the jury’s verdict? A California appellate court disagreed. According to the court of appeals in Mokler v. County of Orange the board member’s improper conduct toward the ED failed to demonstrate sufficiently severe or pervasive acts to establish a hostile work environment claim.

Following established precedent, we conclude these acts of harassment fall short of establishing “a pattern of continuous, pervasive harassment” necessary to show a hostile working environment under FEHA. [The board member] did not supervise [the ED] or work in the same building with her. The first incident involved no touching or sexual remarks; rather, [the board member] uttered an isolated but boorish comment on [the ED’s] marital status. The second incident did not occur at work, and involved a minor suggestive remark and nonsexual touching. The third incident involved touching when [the board member] placed his arm around [the ED] and rubbed his arm against her breast in the process. The touching, however, was brief and did not constitute an act of extreme harassment. [The board member’s] request for [the ED’s] home address was brazen, but this conduct falls short of what the law requires to establish a hostile work environment. [The board member’s] derogatory statement regarding Mexicans was unmistakably foul and offensive, but not sexual. [Internal citations omitted.]

While the decision is clearly a victory for employers seeking to defeat sexual harassment claims, it also reminds employers that inappropriate conduct, while not unlawful, can be very expensive. This particular case stemmed from conduct in 2003. The appellate court’s decision in 2007 indicates the case dragged on for more than four years. You can be assured that this victory was very costly.

The Law Office of Phillip J. Griego
95 South Market Street, Suite 520
San Jose, CA 95113
Tel. 408-293-6341
 
Original article by Robert E. Nuddleman, former associate of The Law Office of Phillip J. Griego.
 

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