Hostile Work Environment (12/17/07)

COURT RULES THAT NOT ALL INAPPROPRIATE CONDUCT CREATES A HOSTILE WORK ENVIRONMENT

By Michael C. Saqui & Anthony P. Raimondo

On November 26, 2007, a California appellate court explained that not every instance of inappropriate conduct can creates a “hostile work environment” that results in liability for sexual harassment. In Mokler v. County of Orange, the court determined that three instances of offensive behavior over a five-week period did not create the continuous, pervasive harassment necessary for the plaintiff to prevail in a hostile work environment case.

The plaintiff was the Executive Director of the Orange County Office on Aging, and was called upon to interact with County Supervisors. One male Supervisor called plaintiff an “aging nun” as a comment on the fact that she was not married. A week later, the same Supervisor encountered her at a social function, and he took her arm, pulled her towards him so that the sides of their bodies were touching and asked her if she was there to lobby him. When she said no, the Supervisor pointed to two women standing next to him and asked, “Why not? These women are lobbying me.” He also looked her up and down and told her she had a nice suit and nice legs. A month later, when plaintiff went to the Supervisor's office, he told her she looked nice and put his arm around her. He went so far as to ask where she lived and rubbed her breast as he put his arm around her.

In a surprising decision, the appellate court held that the three incidents, though “rude, inappropriate, and offensive,” were not sufficient to create a hostile work environment as a matter of law because they did not show “a pattern of continuous, pervasive harassment.”

While the employer in this case was not found liable for sexual harassment, it was found liable for a violation of the whistleblower law when it fired the plaintiff because she reported irregularities that she thought violated state and federal law.

COUNSEL TO MANAGEMENT:

Employers should not take this case as a victory and let down their guard when it comes to preventing sexual harassment through strongly worded policies in place forbidding sexual harassment, and comprehensive training programs covering recognition and prevention of sexual harassment. Employers should remember that the employer in this case lost the case at trial, and had to incur the cost of an appeal to get that loss reversed. In addition, it lost the appeal on the whistleblower component of the case, and still faces six to seven figure liability on that claim. While there are cases such as this one out there, they represent the exception rather than the rule, and cannot be relied upon as protection from future legal claims.

The best approach remains strong policies, thorough and documented training, and documentation and investigation of all complaints with an appropriate response to the findings of a prompt and thorough investigation.

The goal of this article is to provide employers with current labor and employment law information. The contents should neither be interpreted as, nor construed as legal advice or opinion. The reader should consult with Saqui & Raimondo at (831) 443-7100 in Salinas, or (916) 782-8555 in Sacramento for individual responses to questions or concerns regarding any given situation.