Sexual Harassment

For decades, gender equality laws in California moved at a funeral pace. But in 2017, #MeToo lit a fire behind these movements, prompting swift response from State and Federal legislatures. Now, two years later, education about sexual harassment is mandatory, the bars for harassment claims are lowered, and institutions are taking aim against gender hierarchies. In 2019, the law is starting to catch up to the national recognition of equality.

Perhaps the most impactful California legislation to arise from the #MeToo movement is Senate Bill 1300, codified in Government Code Secs. 12964.5 and 12923. Prior to SB 1300, the law suggested a single act of harassment may not be sufficiently “severe” to meet the “severe or pervasive” standard required for a California sexual harassment claim. Thus, a judge could summarily adjudicate (throw out) a case if there was only one act of harassment, especially if that act did not involve sexual touching. Now, SB 1300 clarifies that a single incident of harassing conduct is enough to create a triable issue of fact for a hostile work environment claim if “the harassing conduct has unreasonably interfered with the plaintiff’s work performance or created an intimidating, hostile, or offensive working environment.” SB 1300 also includes a safety net for sexual harassment claims, clarifying that harassment cases “are rarely appropriate for disposition on summary judgment.” In other words, sexual harassment, even just once, should go to a jury to decide.

Prior to SB 1300, California law was unclear whether statements made by non-decision makers, or “stray remarks,” were admissible to show intent in a sexual harassment or discrimination case. Today, Government Code 12923(c) provides that a hostile work environment claim, “… depends on the totality of the circumstances and a discriminatory remark, even if not made directly in the context of an employment decision or uttered by a nondecisionmaker, may be relevant, circumstantial evidence of discrimination.”

In 2006, the California Supreme Court opined in Lyle v. Warner Brothers Television Productions, that writers for the sitcom “Friends” could make sexual comments while writing the sexually-themed comedy show. However, employers used this narrow decision to argue other workplaces should also be allowed to engage in this sexual banter. But SB 1300 shot down the employer’s broad argument and stated the legal standard for sexual harassment “should not vary by workplace.” Instead, the California Legislature narrowed the Lyle holding by limiting the “nature of the workplace” defense to whether that type of sexual commentary is “integral to the performance of job duties.”

What does this mean for the harassment victim? The California Legislature has effectively removed many obstacles in a sexual harassment victim’s trek to a jury trial. These cases are extremely factual and rely heavily on witness credibility, and it should ultimately be up to the trier of fact to weigh this evidence.

If you believe you have been sexually harassed at work, you may have a case against your employer. For more information about your rights, and a free case evaluation, please contact us online or call us at (619) 342-8000

[Govt. Code 12923(b).

Lyle v. Warner Brothers Television Productions, 38 Cal. 4th 264, 286-294 (2006).

On February 14, 2016, the day of romance is bestowed upon us. While the precise origins of Valentine’s Day, also known as Saint Valentine’s Day, remain murky, February 14 has become synonymous with romantic love.  The day is celebrated with the exchange of candy, flowers, gifts and cards between loved ones.

While love is in the air and love should be celebrated, when cupid makes an appearance in the office it can quickly translate into awkwardness, unprofessionalism, and even unlawful harassment and discrimination.

As Valentine’s Day approaches, it would be wise to think twice before using the day as an excuse to be a little more forward with a co-worker or more open about your love life.  For example, in Johnson v. West, a supervisor’s Valentine’s Day card that expressed the supervisor’s love for a subordinate employee, signed “Happy Valentine’s Day, Sweetheart,” was the straw that broke the camel’s back that culminated into a sexual harassment lawsuit by the employee against the supervisor and employer.  Below is a list of do’s and don’ts to keep things joyous, yet professional.

The Don’ts

Do not give gifts to one coworker and not others.  Singling out a select employee (or select group of employees) can turn out disastrous with missed expectations, misunderstandings, and hurt feelings.  If you are giving something to one, give it to all, or else the question of favoritism or unfair treatment is likely to make an appearance.  When the question of unfair treatment is raised, particularly when the gifts or treatment are associated with a day of romance, the basis of the unfair treatment is much more easily tied to a legally protected characteristic, such as gender or sex.  This in turn can equate to legal problems.

Do not give co-workers expensive or inappropriate gifts. This is particularly problematic when supervisors purchase expensive or inappropriate gifts for subordinates. Giving extravagant gifts can be viewed in a many different ways, including the not so good ways associated with sexual favoritism.

Valentine’s Day is not a justification for inappropriate behavior.  While Valentine’s Day should be celebrated, do not be over-zealous in your celebrating.  Being overly affectionate with co-workers may not only make them uncomfortable, but it could be viewed as flirting and, depending on the nature of the conduct, it could constitute harassment.

Do not allow your emotions to openly run wild. Valentine’s Day does not grant you a free license to express your emotions or opinions about your relationship or the relationships of others. Nor does the day give you free reign to act on the emotional attraction toward someone you may have had pent up inside you for the last year. Such conduct, while in appropriate cases could be welcomed, could be received as anything from inappropriate to harassment.

Do not share the details of your love life with co-workers.  As with the other “no no’s”, Valentine’s Day does not open the door to sharing the spicy details of your love life with co-workers. Even if you are close with your co-workers, the office is not the appropriate place to be discussing such details.

The Do’s

Do wish your co-workers a happy Valentine’s Day. Valentine’s Day has become of a day of celebration of love and sharing your love for those around you and for the work you do should not be viewed as per se taboo.  Wishing your colleagues a heart-felt Happy Valentine’s Day is appropriate, as long as the love is spread evenly and appropriately.

Bring small, inexpensive gifts or treats, such as cookies, for everyone in the office to share. Cookies, small treats, or desserts are a great way to show co-workers you care about them, without crossing the gray line of what could constitute inappropriate conduct.

Treat your employees to a company-wide dinner or other activity.  Showing your employees you appreciate them for everything they do for your company should be celebrated. Organizing a company-wide dinner or other activity is a great way to show appreciation for all employees, without implications of showing unfair treatment.

Use Valentine’s Day as an opportunity to share what you love about your job.  Focus not on the romantic components of a relationship with co-workers, but focus on their work. Share with co-workers what you believe to be their positive attributes as they relate to their job.  As always, keep it professional.

For more information about your legal rights in the workplace or if you have any questions or concerns about your job, please do not hesitate to contact an attorney at Zeldes Haeggquist & Eck, LLP.

To schedule your free initial consultation, contact us online or call (619) 342-8000 today!