Articles Posted in Sexual Harassment

The Ninth Circuit Court of Appeals recently published a decision, providing guidance to courts on when hugs and other forms of unwanted touching cross the line and become sexual harassment. Victoria Zetwick began working for Yolo County as a correctional officer in 1988. In 1999, Edward Prieto was elected as the county sheriff and became Ms. Zetwick’s supervisor. Ms. Zetwick alleged that between 1999 and 2002, Mr. Prieto subjected her to over a hundred unwelcome hugs. On one occasion, Ms. Zetwick says that Mr. Prieto, apparently in an effort to congratulate her on her recent marriage, kissed her partially on the lips. She complained about the incident but her supervisors did not forward her complaints for investigation. Ms. Zewick claimed that in 2010, she was working with another female employee and Mr. Prieto reached out to hug her. He then stopped himself and said that people had complained so he would not hug her. But then he proceeded to hug her and the other female officer anyway.

Ms. Zetwick claimed that Mr. Prieto didn’t reserve his hugs just for her. She claimed that over the years she saw Mr. Prieto hug and kiss dozens of female employees but never saw him hug male employees – instead, he would shake hands with male employees. On another occasion, Ms. Zetwick claimed that Mr. Prieto repeatedly asked another female employee how much she weighed until she answered and looked at the employee in a sexually suggestive manner. Mr. Prieto claimed that he did in fact hug male employees and that all of his hugs were just friendly hugs. The County also claimed that Ms. Zetwick hugged other male co-workers and joked about Mr. Prieto’s hugs.

Several courts have determined that hugs and kisses on the cheek do not always create a sexually hostile work environment. However, in determining whether such conduct does crease a hostile work environment courts must look at who engaged in the conduct, the conduct itself, the number of times the conduct occurs, and the period of time over which the conduct occurs. Importantly, the conduct must be severe or pervasive- it does not have to be both.

Although this is not an employment case, C.A. v. William S. Hart Union High School District, 53 Cal.4th 861 (March 8, 2012) is a sexual harassment case, and as such, important to employees, employers and employment lawyers.

School districts, like employers, have – under some circumstances – avoided legal responsibility for sexual harassment. Courts have declared that the school district and employer may not be liable for the sexual assault/harassment because the sexual harassment is outside the course and scope of the employee’s job duties. See, for example, John R. v. Oakland Unified School District (1989) 48 Cal. 3rd 438.

In this case, the California Supreme Court clarifies that a school district cannot escape liability for sexual harassment where its personnel knew or should have known of the employee’s misconduct and failed to take reasonable steps to prevent it. This ruling is very important to protecting girls (and boys) from sexual harassment in schools.

Autozone did not accept responsibility for the fact that its managers, and thus Autozone itself, were found guilty of sexual harassment, leading it to appeal the jury’s verdict and claim that the plaintiff’s testimony was somehow “inherently improbable.” The California Court of Appeal was able to accurately discern that the vile and filthy conduct of Autozone’s managers made plaintiff’s work environment a living hell for three weeks, resulting in a just verdict of sexual harassment. Fuentes v. Autozone (Nov. 16, 2011, B224034) _ Cal.App.4th _ [11 C.D.O.S. 13926].

Poor Ms. Fuentes, a part time customer service representative, was just trying to do her job at Autozone. Her manager had the audacity to humiliate her by grabbing her and spinning her around in front of laughing customers, instructing her to, “show your butt to the customers and that way you can sell more.” When the customers returned later that day, the manager went at it again, ordering Fuentes: “Get ready to turn around for them.” The Court of Appeal accurately characterized this conduct as “humiliating Fuentes by exploiting her body.”

To add insult to injury, when Ms. Fuentes developed a fever blister on her lip, the same store manager started a vicious set of graphic discussions about how Ms. Fuentes must have obtained the blister, and how it was really herpes. This led to another manager spinning the rumor further, telling a coworker, “Be careful where you put your dick at with Marcelo [Fuentes],” implying that this described conduct was the cause of her blister. Some of these discussions occurred in front of laughing customers and coworkers. Some were repeated back to Ms. Fuentes. Ms. Fuentes testified regarding how these comments humiliated her and how, because she was having problems with certain male customers, she was concerned for her safety as she walked home from work at night.

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.

Ms. Panjota, as well as a number of other women, had the bad fortunate of working for an employment lawyer, Mr. Anton, who should have known better. One must wonder how Mr. Anton got any work done, given that this case makes it look like every moment of his work day was spent spewing vile epithets at his female staff, as well as pulling the elastic on a female employee’s underwear and asking an employee to wear see through clothes.

During the trial of this case, Ms. Panjota’s lawyers tried, over and over again, to present to the jury the ample evidence that Mr. Anton’s obscene and abusive conduct and statements were based on his discriminatory feeling s towards women. Besides presenting Ms. Panjota’s own riveting testimony, Ms. Panjota’s lawyers also wanted to present “me too” evidence, i.e. evidence regarding the manner in which Mr. Anton treated other female employees. Over and over again, the Kern County trial judge refused to admit a wide variety of “me too” evidence, even though Ms. Panjota explained that the evidence was to establish Mr.Anton’s (discriminatory) state of mind. Panjota v Anton, ___ Cal.App.4th ___ ( August 9, 2011).

Thank goodness Ms. Panjota’s counsel did not give up, and created a good fact record. This permitted the Court of Appeals to understood the errors of the lower court’s ways. The Court of Appeals held, in a 54 page opinion, that this “me too” evidence should have been admitted because Anthon’s intent was at issue, and the way Anton treated and spoke to other female employees shed light on whether his intent was discriminatory or merely rude and disgusting.