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9th Circuit Reminds that Crude and Offensive Remarks Alone Do Not Create a Claim for Hostile Work Environment

8/17/2013

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In Westendorf v West Coast Contractors (2013) the Plaintiff, a project manager assistant, claimed hostile work environment based on sexual harassment, based on several sexual comments she heard from her manager, some of which were directed to her and others were directed to another woman. The Court affirmed that dismissal of the case. The Court noted yet again that isolated inappropriate comments, without other evidence of sexual discrimination or unlawful harassment, do not create a viable hostile work environment claim. Plaintiff was, however, allowed to proceed forward with her retaliation claim. This is because even though there was no sufficient evidence to prove the harassment claim, the court found that there was sufficient evidence to allow the Plaintiff to prove that her complaints were the motivating reason for her being fired. 

This decision makes a lot of sense. It would be impractical and borderline nonsensical to allow every inappropriate comment or sexual innuendo/joke turn into a lawsuit for obvious reasons. The Court requires evidence of unlawful hostility against an employee based on a protected class that goes beyond a few isolated comments, especially of those comments are taken out of context. 
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9th Circuit Clarifies the Law on Reverse Sexual Harassment in California

9/4/2010

 
The Ninth Curcuit extensively discusses the sexual harassment law as it applies to male victims in it recent decision, filed on September 3, 2010 - EEOC v. Prospect Airport Services, Inc. In that case the claimant - a Christian male was sexually propositioned over and over by a female co-worker over a period of many months. Despite the claimant's complaints to his supervisor and human resources department, they would mostly jokingly dismiss his complaints, nor believing that a male can actually suffer from a woman's advances. 

The lower (trial) has dismissed the case in large part due to the claimant's testimony that other men wouldn't have minded if they were in his position. However, the appellate court was not persuaded that this is a good reason to dismiss the case, stating and rightfully saw that just because some other men would have flattered by such aggressive attention from a woman doesn't mean that this specific plaintiff is not a victim of hostile work environment.

The other significant point that the Ninth Circuit emphasized in its decision to reverse the dismissal and remand the case for further proceeding is total lack of response from the employer. An employer is liable for an employee's sexual harassment of a co-worker if it knew, or should have known, about the harassment and failed to take prompt and effective remedial action. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986). Harassment is to be remedied through actions targeted at the harasser, not at the victim.  In this case, the management was well aware of the harassment complaints by the victim, but they did absolutely nothing except dismiss his complaints with sexual jokes. This decision further reinforces the well established law that discrimination because of sex protects men as well as women. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78 (1998).

What is considered hostile work environment sexual harassment at California workplace?

7/24/2008

 

Many workers are used to believing that sexual harassment hostile work environment is an unlawful conduct at work place which involves unwelcome sexual advances of a co-workers or a supervisor such as sexual innuendos, offensive touching, and alike. Although those are typical examples of a situation which is likely to be classified as sexual harassment, the offensive words or conduct directed at an employee because of his or her gender may create a hostile work environment even if those words or conduct are not sexual in nature. For example, using a word “bitch” repetitively in the presence of both men and women but in reference to women may constitute unlawful gender harassment. 

On the other hand, hostile words or conduct based solely on personal animosity is no actionable as sexual harassment in California even if the victim is of the opposite gender. As the court pointed out in once case – “Unfair, overbearing, or annoying treatment of an employee, standing alone, cannot constitute a sex discrimination claim. In other words, a conduct that is based on personal agenda or anger and not on gender is not grounds to claim sexual harassment. For instance, if a boss and a particular employee are not compatible, it would not be sexually discriminatory to harass employee on that basis. In other words, sexual/gender harassment requires showing that the employee was treated a certain way because of his or her gender. For example, where the employee was the only woman on the workforce, her coworkers’ acts of insubordination, dissemination of untrue rumors about her, and aspersions on her competence may contribute to a hostile work environment based on sex. 

The employer may assert a defense against liability for sexual harassment claim by showing that the employer exercised reasonable care to prevent and correct promptly any harassing behavior, and that the employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer to avoid harm otherwise. This corrective opportunities commonly include a section in the employee handbook explaining the procedures of complaining about harassment and the employer’s express commitment to address those complaints as soon as possible.

Who is liable for sexual harassment if you were employed by a temporary agency?

6/1/2008

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Suppose, you sign up with a temp employment agency to find a job, the place you in a temporary assignment at one of their clients’ sites where you end up being a victim of sexual harassment. How would be liable in this situation - the company where you were temporarily employed, the temp agency or both?

Under Mathieu v. Norrell Corp., 115 Cal.App.4th 1174 (2004), in the context of an individual who is employed by a temporary agency and assigned to work on the premises of the agency’s client, the purpose of the Fair Employment and Housing Act (FEHA) to safeguard an employee’s right to hold employment without experiencing discrimination is best served by applying the traditional labor law doctrine of “dual employers,” which holds that both the agency and the agency's client - company are employers for the purposes of FEHA anti-discrimination laws, and considers harassment by an employee of the client to be a coworker's harassment rather than harassment by a third party. This means, that a temporary agency may be liable for the sexual harassment that took place at one of it’s clients’ sites.

Like other defendants, the temporary employment agency may avoid liability for sexual harassment claim under FEHA by demonstrating that (i) it responded appropriately to claims of harassment made by the employee; and/or (ii) the agency was not aware of the alleged sexual harassment at the company until it had ceased.

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Law Office of Arkady Itkin - San Francisco & Sacramento Injury and Employment Lawyer
We represent employees and employers in employment and wrongful termination cases, as well as victims of serious injuries in San Francisco, Oakland, Sacramento, San Jose, Palo Alto, San Mateo and throughout Northern California. 


57 Post Street, Suite 812, San Francisco, CA 94104; Tel. (415) 295-4730; Fax. (415) 508-3474; arkady@arkadylaw.com
Photo used under Creative Commons from Ernst Moeksis