In the 4th District California Court of Appeal, the Court has ruled in Brennan v. Townsend & O'Leary Enterprises, Inc. that an advertising agency executive director's e-mail referring to a female vice president in derogatory sexual terms was not part of a sufficiently "severe" pattern of sexual harassment to establish a hostile work environment under the Fair Employment and Housing Act (FEHA).
This case is interesting for a number of reasons - first, the lawsuit went all the way through trial and the jury returned special verdicts in favor of the vice president and against her employers on the sexual harassment claim, expressly finding she was subjected to severe or pervasive harassment because she was a woman. Judgment was entered awarding plaintiff $200,000 against the agency and $50,000 against Montgomery.
The trial court judge, Kazuharu Makino, then ruled that there was insufficient evidence at trial to support the jury's verdict. In doing so, he applied a test set forth in Mokler v. County of Orange (2007) 157 Cal.App.4th 121, which governs the factors considered in evaluating the "totality of circumstances upon which hostile work environment determination is based." The factors used to determine whether sexual harassment creates a hostile work environment are:
- timing, and
- context of defendants' conduct
In this case, the Court found that the e-mail was sent to the vice president inadvertently, and the author of the email was not the vice president's supervisor. There was not enough evidence to establish other incidents of sexual harassment, and the Court found that evidence that the business owner's inquiries about the vice president's sex life, incidents at agency holiday parties and a meeting after a bachelorettte party did not rise to "pervasive" sexual harrassment needed to make a case of hostile work environment. Bachelorette props, including a bridal veil with a penis on it, and the frequent use of the word "bitch" around the office, didn't tip the scales in favor of the vice president.
Justice Moore filed a dissent to the Appellate Court's ruling, writing of the vice president that "[o]nce she decided she could no longer suffer the belittling, locker room environment quietly and without complaint, her workplace became increasingly hostile until she eventually resigned. When the overtly sex-based acts are combined with the pattern of retaliation that lasted from Brennan's complaint to her departure, those acts constitute sufficient evidence of a hostile work environment."
So, did the employer "win" the lawsuit? Litigation, jury trial and appeal are expensive, time consuming and can have an destructive impact on the workplace. Here, the employer was awarded costs on appeal, and both employee and employer are likely out of pocket.
The takeaway from this case is clear - there is a thin line between sexual harassment and sexual harassment that rises to a hostile work environment, and no employer wants to be either side of a "thin line." Write policy and procedures for your employees to protect yourself from the type of lawsuit that arises out of forwarded email, sexually-charged humor and conversations that are best left in the locker room. Learn the law as it applies to your business, and remember that prevention is always cheaper than cure! If you are interested in model sexual harassment policies for you organization, call me. A phone call is always free.
Nothing in the above information is intended to create an attorney-client relationship with the reader or to provide legal advice. This blog is provided as a service to clients, and is not intended as an advertisement. Every case is different and I always recommend you contact an attorney who will help you apply the facts of your specific case to the law.