Court of Appeals Rejects Harassment Case
A recent appellate court decision brought some relief for California employers in the area of sexual harassment. Although it has always been the case that not all sexual conduct in the workplace is sexual harassment, the definition of when the line is crossed has been vague for quite some time.
In a decision entitled Haberman v. Cengage Inc., an appellate court followed the recent California Supreme Court decision of Hughes v. Pair in which the high court held “In construing California’s FEHA...the hostile work environment form of sexual harassment is actionable only when the harassing behavior is pervasive or severe…To prevail on a hostile work environment claim under California’s FEHA, an employee must show that the harassing conduct was severe enough or sufficiently pervasive to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees because of their sex. There is no recovery for harassment that is occasional, isolated, sporadic, or trivial.”
The conduct involved in the Haberman case involved solely comments and no touching. They also took place over a long period of time yet the court found no harassment.
Some of the allegations which the court found insufficiently severe and pervasive included:
· At a conference, the alleged harasser, Bredenberg, asked the plaintiff how she looked so pretty early in the morning;
· Bredenberg talked to the plaintiff about his wife’s recurrent battle with cancer and said he thought the next time around he would “go for the younger ones because women in their 40s get sick;
· Bredenberg commented that a school administrator was “hot for being an older woman”;
· Bredenberg joked that his father was known as “Big Dick”;
· Bredenberg told the plaintiff that he was not ready for a relationship and just wanted to have sex, and he asked her what she thought; whether she had any friends that just wanted to have sex and whether she knew anyone who was good in bed;
· Bredenberg told the plaintiff that a customer had the “hots” for her and wanted to date her;
The Haberman court found that all the comments were inappropriate, they were not sexual harassment. In so ruling, the Court stated that “Bredenberg made brief and isolated comments to Haberman over the course of a two or three-year period...no instance of alleged sexual harassment involved any physical contact.” In summary, the court endorsed the proposition that the FEHA is not a general civility code and is not designed to rid the workplace of vulgarity.
Although this case will be valuable precedent for employers defending claims of sexual harassment, it is extremely risky to assume that another court would rule similarly under a different set of facts. Rather all employers are well advised to insure that all allegations of harassment are taken seriously and investigated thoroughly and promptly. These cases continue to represent substantial potential exposure for employers.
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