Recent Decision Makes It More Difficult To Claim Sexual Harassment

Second Quarter 2010Newsletters California Update Employment Law

Though California courts are generally reluctant to grant summary judgment for employers in sexual harassment cases, a recent California appellate court decision could make that uphill climb a little easier by narrowing the definition of illegal sexual harassment.

The plaintiff in Haberman v. Cengage Inc., __ Cal.App.4th ____ (2009), sued her employer and two former supervisors for sexual harassment and several other claims. Her sexual harassment claim was based exclusively on several alleged comments made by the two supervisors over a threeyear period. Some of these comments included statements like:

  • "Wow. You look so pretty. How do you look so good so early in the morning?"
  • The plaintiff was referred to as "drop dead gorgeous."
  • A defendant joked at a meeting that his father is referred to as "Big Dick."
  • A defendant told the plaintiff that a co-worker had "the hots" for her, and then asked her if she would ever go out with him.
  • After the death of his wife, a defendant told the plaintiff he was not ready for a relationship, and that he just wanted to have sex, and he asked the plaintiff whether she had any friends who just wanted to have sex, and whether she knew how anyone was good in bed.

Taking note of the recent California Supreme Court decision in Hughes v. Pair, 49 Cal.4th 1035 (2009), the appellate court reiterated that "[t]here is no recovery ‘for harassment that is occasional, isolated, sporadic or trivial.'" Rather, sexual harassment based on a hostile work environment theory is actionable only when the harassing behavior is pervasive or severe. To be considered "pervasive," the conduct must consist of more than a few isolated incidents. As to what constitutes "severe" conduct, vulgar and highly offensive comments of a sexual nature are not considered severe if they "would not plausibly be construed by a reasonable trier of fact as a threat to commit a sexual assault on plaintiff."

Based on these principles, the Court of Appeal affirmed summary judgment for the defendants, holding that the alleged conduct constituted neither severe nor pervasive harassment. The plaintiff could not establish that she was subjected to "severe" harassment because none of the alleged incidents involved physical contact, propositioning or threats. Despite the relatively long period of time over which the alleged incidents took place, the plaintiff's allegations also fell "far short" of establishing a pattern of continuous, pervasive harassment because the comments, while often inappropriate, were isolated, sporadic and often trivial.

Though this decision is favorable to employers, sexual harassment lawsuits continue to pose substantial exposure. It is very easy for a disgruntled employee to file a lawsuit based on isolated and trivial comments, but it remains time-consuming and expensive for employers to defend these cases. Employers can reduce the risk of being sued by training employees to avoid inappropriate and unprofessional conduct, such as mutual sexual banter, in the workplace.