Sexual harassment in the workplace is a well known and widely understood issue. Most people realize that it is a breach of ethics and etiquette to make unwanted sexual advances upon or comments about co-workers. Since 1980, the law of the State of California has codified those social rules in the Fair Employment and Housing Act (“FEHA”).1 However, what is not well-known is that words alone are rarely a sufficient basis for filing a sexual harassment suit.
There are two recognized theories of liability, or types of sexual harassment under FEHA: 1) Quid Pro Quo; and 2) Hostile Work Environment. Quid Pro Quo harassment applies to situations where a supervisor offers a job or a promotion, or offers to refrain from demoting or firing an employee, in exchange for sexual favors.2 This article will not discuss Quid Pro Quo harassment, but rather, will focus on the more well-known and recently diminished “Hostile Work Environment” theory. In particular, it will attempt to demonstrate that though the text of FEHA has not changed, the opinions of the judges interpreting that law have shifted dramatically.
FEHA has always required the plaintiff to prove that the claimed sexual harassment was “sufficiently severe or pervasive to alter the conditions of the victim’s employment” and that the defendant’s conduct would have interfered with a reasonable employee’s work performance and would have seriously affected the psychological wellbeing of a reasonable employee.3 The factors are evaluated by weighing: (1) the nature of the unwelcome sexual acts or works (generally, physical touching is more offensive than unwelcome verbal abuse); (2) the frequency of the offensive encounters; (3) the total number of days over which all of the offensive conduct occurs; and (4) the context in which the sexually harassing conduct occurred.4 Harassment cannot be occasional, isolated, sporadic, or trivial. These acts must constitute a concerted pattern of harassment of a repeated, routine or a generalized nature.5
During the 1980s, 1990s and into the 2000s, plaintiffs regularly filed lawsuits and collected settlements and judgments for sexual harassment claims based on offensive comments alone. The severity and frequency of the comments need not have been great, and indeed could have consisted of only a handful of such remarks.
However, since the mid-to-late 2000s, as society’s skin has thickened and our public conversations have coursened, so too have the courts grown more tolerant of sexual remarks in the workplace. Perhaps it is a reflection of the increased level of sexuality on the internet, television, and other social media; or perhaps those media reflect a change in our society. One might view this as a negative trend, a debasement of our culture; or perhaps as a positive trend, caused by our increasing tolerance and maturity in our view of sexuality.
For purposes of this article however, and from a legal standpoint, this shift in society has made its way to the courts, which now generally hold that a hostile work environment sexual harassment claim must be based on more than occasional crude or inappropriate language.
A good starting point to demonstrate this shift in the courts is Lyle v. Warner Bros. Television Productions.6 In Lyle, the plaintiff worked as a writer on the televisions show “Friends.” She claimed that the frequent use of sexual innuendo and crude comments in the writers’ room created a hostile work environment. The California Supreme Court affirmed summary judgment for the studio, relying heavily on the fact that none of the comments were directed at the plaintiff or other women in the workplace. However, the court also noted that the writers’ sexual antics, including their pantomiming of masturbation, their drawing in a “cheerleader coloring book,” altering words on scripts and calendars to spell out male and female body parts, graphic discussions about their personal sexual experiences, sexual preferences, and preferences in women, and bragging about their personal sexual exploits did not create a “hostile work environment.
On year later, in Mokler v. County of Orange,7 the California Court of Appeal ruled that a county employee’s sexual harassment claim against a county supervisor failed because the employee’s allegations of misconduct – though directed at her – did not establish a hostile work environment. That case was based on three occasions over a five-week period, and involved no physical contact. The first occurred when the defendant asked plaintiff about her marital status and called her an “aging nun” when he learned she was not married. The second occurred at a party outside of the office when the defendant pulled the plaintiff by the arm close to his body and asked, “Did you come here to lobby me? When she answered no, the defendant responded: “Why not? These women are lobbying me.” He then told plaintiff she had a nice suit and nice legs, and looked up and down at her. The third incident occurred in defendant’s office when defendant told plaintiff that she looked nice and put his arm around her. As he did so, his arm rubbed her breast. He then asked plaintiff where she lived, demanding to know her exact address. The court held that these acts fell short of establishing “a pattern of continuous, pervasive harassment” … necessary to show a hostile working environment under FEHA. Taken as a whole, the foregoing acts demonstrated rude, inappropriate, and offensive behavior, but not were actionable, because they did not render the workplace “permeated with ‘discriminatory intimidation, ridicule and insult,’…. that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.’”
The courts’ increasing tolerance of sexual remarks, even when directed at the plaintiff, was again demonstrated in Haberman v. Cengage Learning, Inc.8 In that, case the Court of Appeal upheld summary judgment against a sexual harassment plaintiff who alleged 13 comments that were made to her over the course of a two or three-year period. In particular, the plaintiff in Haberman alleged that her supervisor did the following:
- asked her how she looked so pretty so early in the morning;
- spoke of his wife’s recurrent battle with cancer and said he thought the next time around he would go for a younger woman because women in their 40’s get sick; (
- commented that a school administrator was “hot for being an older woman”;
- told a customer that plaintiff was amazing and had five children with no father in the picture;
- joked that his father, Richard, is referred to as “Big Dick”;
- a third party asked the plaintiff whether she was dating the supervisor because the supervisor had said the plaintiff was “drop dead’ gorgeous”;
- while they were separately parking for a convention, the supervisor called the plaintiff on her cell phone and told her that he was “coming right up behind her and it felt pretty good”;
- the supervisor asked the plaintiff if she was getting married;
- the supervisor told plaintiff that an author a textbook had the “hots” for her and asked whether she would ever go out with the author;
- the supervisor told the plaintiff that his grief counselor advised him not to make any changes for one year, said he was not ready for a relationship, and said he just wanted to have sex, and asked plaintiff what she thought and whether she had any friends who just wanted to have sex, and whether she knew how anyone was good in bed;
- the supervisor and plaintiff conducted a role-playing training session regarding sales techniques at the supervisor’s house with other co-workers;
- the supervisor asked plaintiff if she had any friends who just wanted to have sex; and
- the supervisor told the plaintiff that a customer’s contractor had the “hots” for her and wanted to date her.
In a somewhat shocking ruling, the court held that these allegations did not establish conduct sufficiently severe or pervasive as to alter her conditions of employment and create a work environment that qualifies as hostile or abusive to plaintiff based on sex and reiterated that FEHA is “not a ‘civility code’ and [is] not designed to rid the workplace of vulgarity.'”
In Hughes v. Pair,9 the defendant was a trustee of an estate created b the plaintiff’s late ex-husband for their son. The defendant called the plaintiff “sweetie” and “honey,” and said he thought of her “in a special way, if you know what I mean.” He offered to grant one of her requests if she would be “nice” to him and told “you know everyone always had a thing for you. You are one of the most beautiful, unattainable women in the world. Here’s my home telephone number and call me when you’re ready to give me what I want.” The plaintiff said the defendant’s comments were “crazy,” to which the defendant responded, “`[h]ow crazy do you want to get?” That same night, the defendant told the plaintiff “I’ll get you on your knees eventually. I’m going to f*** you one way or another.” The Supreme Court concluded that the defendant’s sexually harassing conduct, as plaintiff has described it, was not “pervasive” and not so egregious as to alter the conditions of the underlying professional relationship. To be pervasive, the sexually harassing conduct must consist of “more than a few isolated incidents.” Without any physical contact or threats of physical contact, vulgar and highly offensive remarks alone do not amount to “severe harassing conduct.”
Taken together, these cases show that it is now much harder to prove that sexual remarks constitute a “hostile work environment” under the law. Though unwanted physical contact remains a clear example of prohibited workplace conduct, words alone must directed at the plaintiff herself (or himself) on dozens of occasions over a relatively brief period of perhaps one to two years, and must be even more severe than the egregious comments described herein.
The lesson for employees is this: Do not be quick to file a sexual harassment case based on words alone. If you do, the burden will be extreme and you must keep detailed notes of what was said, when it was said, and who said it. On the other hand, the lesson for employers is this: If you have the misfortune of being sued for sexual harassment conduct in your workplace, the courts will support you unless the plaintiff can prove that they were physically touched, offered a job or promotion in exchange for sex, or they were subjected to direct, severe, and nearly constant verbal harassment.
Noah Green is an attorney and partner at the firm of The Green Firm, P.C. in Pasadena, CA. He can be reached at (626) 395-7686 or firstname.lastname@example.org.
- Government Code §12940, et seq.
- Mogilefsky v. Superior Court (1993) 20 Cal.App.4th 1409, 1414.
- Fisher v. San Pedro Peninsula Hosp. (1989) 214 Cal.App.3d 590, 609-610.
- (2006) 38 Cal.4th 264.
- (2007) 157 Cal.App.4th 121.
- (2009) 180 Cal.App.4th 365, 383-384.
- (2009) 46 Cal.4th 1035.