Court Imposes Unnecessarily High Hurdle for Female Employee to Prove Sexual Harassment Claim in Brennan v. Townsend & O’Leary

In the arena of sexual harassment, we’ve come a long way, baby. In general, the public is more aware of what conduct is forbidden in the workplace, and many employers train managers and employees alike to prevent such conduct. As a society, we are much more likely to have work environments free from sexual harassment than we were when the U.S. Supreme Court first clearly defined sexual harassment hostile environment cases as illegal in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986).

However, this progress should not make us close our eyes to inexplicable legal decisions where the courts simply don’t seem to get it. First, there is the judicially created doctrine that a claim for sexual harassment must involve conduct that is “severe or pervasive.” This judicial fiction can be used to permit abhorrent conduct in the workplace, and label it as “not sexual harassment.” Second, the concept of “severe or pervasive” is, to put it mildly, a subjective concept subject to the decision maker’s own bias or perspective. In particular, the bias of judicial gatekeepers, who throw out sexual harassment cases before they reach a jury or overturn jury verdicts finding the plaintiff was a victim of sexual harassment, keeps getting in the way. Judges can simply declare that the conduct isn’t severe or pervasive enough and voilà, the plaintiff has not been harassed!

This leads me to comment on the recent case of Brennan v Towsend & O’Leary, ___Cal.App.4th___ (October 18, 2011). In Ms. Brennan’s case the jury found that the employer created a hostile environment. The judge overturned the jury’s verdict on a judgment notwithstanding the verdict (JNOV). The Court of Appeal agreed, claiming that the conduct was not, in its judicial opinion, severe or pervasive.

However, determining whether or not conduct is severe or pervasive is not an objective determination; it is in the eye of the beholder. Thus, we must ask: not severe or pervasive enough according to whom? The conduct in the Brennan case was severe or pervasive enough for the jury. The superior court judge originally let the evidence go to trial, suggesting at least initially that the judge must have thought it was severe or pervasive enough for the jury to hear.

So, let’s look at the facts here, and you can vote yourself. The fact that readers may differ on whether the conduct was severe or pervasive is just my point: this is a jury question, not a gatekeeper question. I personally can’t quite get over the fact that the trial judge and three Court of Appeal judges went out of their way to protect a manager who referred to the plaintiff in a corporate email as a “big-titted mindless one.” This was not the only sexist language or conduct in the workplace. What about the company sponsored party where one of the owners wore a Santa hat with the word “bitch” printed across it? Or what about the owner who repeatedly questioned the plaintiff about her sex life, along with inappropriate hand gestures? And once Ms. Brennan complained, she was retaliated against. As noted in the dissent, although the retaliation was not sexual in nature, it was sex based.

I do believe that Ms. Brennan may have been in a better position if her complaint had included a claim for retaliation. However, that is no reason to second guess the jury’s judgment and discretion. We think we know sexual harassment when we see it. How dare these four judges take away Ms. Brennan’s verdict to justify their own personal and subjective beliefs that the environment wasn’t hostile enough! We still have a long way to go, baby!

Jody LeWitter

November 27, 2011