Do You Need A Sexual Harassment Attorney?

While it is common knowledge that sexual conduct in the workplace can constitute sexual harassment, it is not so well-known that retaliation by an employer against an employee who complains about sexual harassment, rightly or wrongly, is against the law. Another form of discrimination that is not so well known is when a supervisor yells or takes other adverse employment action, even when it is not sexual in nature, against one sex more vigorously or more often than against the other. Below are discussions of (1) retaliation and (2) yelling in the workplace as a type of gender discrimination and sexual harassment.

Many of the nuances of the laws of sexual harassment in the workplace and hostile work environment are not obvious. Here are some examples:

CASE IN POINT: The Friends Case

You may associate the hit TV sitcom Friends with the catchy “I’ll Be There for You” theme song, comedic one-liners, and the never-ending relationship saga of Rachel and Ross. This TV show also made its way into the sexual harassment law arena in 2006 through the California Supreme Court case of Lyle v. Warner Bros. Television Productions (“Lyle” or “Friends”).

In the Friends case, a female writer’s assistant filed suit against male comedy writers for sexual harassment. The case revolved around whether the writers’ conduct, which included sexual antics, graphic sexual discussions, and lewd gestures such as pantomiming of masturbation, constituted a work environment which was hostile and abusive on the basis of sex.

In order for there to be a hostile work environment, sexual harassment must be sufficiently severe or pervasive from the perspective of a reasonable person with the same fundamental characteristics of the plaintiff.

The California Supreme Court in the Friends case found that the writers’ sexual behavior was not sufficiently severe or pervasive because the sexual conduct was not directed at the plaintiff or other women in the workplace and because the Friends production was a creative workplace focused on writing scripts for a sexually-themed comedy show. The California Supreme Court said, “Because the derogatory comments did not involve plaintiff, she was obligated to set forth specific facts from which a reasonable trier of fact could find the conduct ‘permeated’ her direct workplace environment and was ‘pervasive and destructive.’”

In determining whether conduct permeated the purported victim’s work environment and was pervasive and destructive, the trier of fact should consider all the surrounding circumstances of the case. In the Friends case, the California Supreme Court found that the writers’ conduct did not constitute unlawful harassment and was “neither surprising nor unreasonable from a creative standpoint.” The Court said, “Common sense, and an appropriate sensibility to social context, will enable courts and juries to distinguish between simple teasing or roughhousing… and conduct which a reasonable person in the plaintiff’s position would find severely hostile or abusive.”

In other words, whether sexual conduct will permeate a victim’s workplace and be pervasive and destructive will depend on what type of job the victim holds. For example, if the explicit sexual behavior of the writers in Friends, such as telling graphic sexual stories and pantomiming of masturbation, took place instead at an accounting firm’s daily meetings over an extended course of time, it may very well be pervasive and destructive. On the other hand, if a female bartender is working at a strip club, and is exposed daily to graphic sexual conduct, the social context would indicate that the behavior is not pervasive and destructive and does not create a hostile work environment.

Harassment Must Be Based on Gender

In order for an employee to prove that the harassment he or she suffered was based on his or her sex, an employee must show that he or she was treated differently because of his or her sex. When the sexual innuendos or gender-related speech, such as talk of sex in the workplace, crude language, or vulgar gestures, are directed toward an employee or toward an employee’s gender in general, this conduct will constitute hostile work environment sexual harassment if it is sufficiently severe or pervasive.

This does not require that the harasser be a different sex than the harassed. Both California courts and the Supreme Court of the United States have found that harassment in the workplace can violate the law against discrimination “because of sex” when the harasser and the harassed are of the same sex.

Hostile Work Environment Must Be Based on Gender, But Need Not Necessarily Be Sexual in Nature

Hostile work environment sexual harassment need not necessarily be based on language or conduct of a sexual nature. What is necessary is that there is a hostile work environment because of the employee’s sex. If an employee is being harassed at work because the supervisor is misogynistic (dislikes women), and the supervisor’s harassment is creating a hostile work environment for the employee, then the employee has the basis for a lawsuit.

CASE IN POINT: Yelling in the Workplace

Screaming and yelling by male supervisors to female employees at work may constitute sexual harassment that is actionable if the screamer yells more forcefully or more frequently at female employees than at male employees and in a manner that affects women more adversely than it affects men in the workplace. Such non-sexual behaviors can constitute sexual harassment in the nature of a hostile work environment, as confirmed in the case of EEOC/Christopher v. National Education Association by the Ninth Circuit of the United States Court of Appeals in 2005.

In that case, three women sued their employer for sex-based hostile work environment due to the behavior of their supervisor, Thomas Harvey. Harvey frequently screamed at his female employees with little or no provocation. The shouting was often profane and in public, and the court found that it clearly intimidated female employees. These incidents between Harvey and female employees were not isolated, but created a “generic atmosphere of intimidation in the workplace” causing them to cry, feel panicked and physically threatened, avoid contact with Harvey, and avoid submitting overtime hours for fear of angering Harvey. Their only options were to call the police and ultimately resign.

The court found that whatever the motive for the harassment, the ultimate question is whether the harasser’s behavior affected women more adversely than it affected men. In this case, it was clear that Harvey’s behavior affected women more adversely, as his threatening behavior was more frequent and more severe towards women than men.

Garcia v. Los Banos Unified School District supports the finding in EEOC/Christopher v. National Education Association that non-sexual behavior including yelling can constitute sexual harassment if women are subjected to the conduct more often and more intensely than men. In Garcia, the plaintiff’s supervisor raised his voice and used profanity with almost everyone in the workplace, both men and women. However, the female plaintiff was subjected to this conduct “more often and more intensely” than men were, and the supervisor’s treatment of the plaintiff was “more severely abusive, as distinct from bantering or joking in tone.”

The Garcia court confirmed that workplace conduct does not need to involve proposals of sexual activity or be motivated by sexual desire in order for the conduct to constitute hostile work environment sexual harassment. It can be sufficient to compare how the alleged harasser treated members of both sexes in a mixed-sex workplace, and to show that one sex was treated adversely.

The California Fair Employment and Housing Act declares that it is an unlawful employment practice for an employer to discharge, expel or otherwise discriminate against any person because the person has opposed sexual harassment and gender discrimination or because the person has filed a complaint, testified, or assisted in a proceeding involving sexual harassment or sexual discrimination. A violation of this code is referred to as retaliation. The Federal Title VII has a similar anti-retaliation provision. A typical retaliation claim arises if an employee makes a claim of sexual harassment or gender discrimination and the employer responds with some type of adverse employment action against the employee.

If, for example, an employee makes a claim of sexual harassment that does meet the legal criteria of being sufficiently severe or pervasive, then the employer retaliates with adverse employment action against the employee, the employee still has the claim for retaliation independent of the merits of the sexual harassment claim that triggered the retaliation. When the underlying claim for sexual harassment has legal merit and the employee has suffered retaliation in addition, the employee will typically bring claims for both sexual harassment and retaliation.

It is illegal for an employer to retaliate against a sexual harassment or discrimination victim for filing a charge with the Department of Fair Employment and Housing or the Equal Employment Opportunity Commission, participating in a sexual harassment investigation, or opposing discriminatory practices.

While both the individual harasser and the employer are liable for sexual harassment in California, the California Supreme Court has confirmed that generally only the employer is responsible for retaliation. Individuals are generally not liable for retaliation in California.

According to Judicial Council of California in order for a plaintiff to prove retaliation, the plaintiff must prove the following elements:

1. That the plaintiff was involved in an activity protected by Fair Employment and Housing Act;

2. That the defendant engaged in an adverse employment action against the plaintiff; or that the defendant engaged in conduct that, taken as a whole, materially and adversely affected the terms and conditions of the plaintiffs employment;

3. That the plaintiff’s protected activity was a motivating reason for the defendant’s decision to take an adverse employment action against the plaintiff;

4. That the plaintiff was harmed; and

5. That the defendant’s conduct was a substantial factor in causing the plaintiff’s harm.

Some employers try to be subtle about retaliating against employees who report sexual harassment or gender discrimination. An employer will not always simply fire an employee, but rather they may start to give the employee poor performance reviews and pass the employee over for advancement. As a result, the California courts use the “materiality test” which means that the court will consider the totality of the circumstances in determining whether the employer has retaliated against the employee. As a part of this inquiry, the court will look at the unique circumstances of the affected employee in the context of the claim at the particular workplace. The federal courts use a slightly different test called the “deterrence test”. The inquiry is whether the employer’s action would have dissuaded a reasonable worker from making or supporting a charge of harassment or discrimination.

Please do not hesitate to give us a call at 650-857-1600 or email us at brodericklaw@brodericklaw.com for a free consultation on how best to approach your sexual harassment problems with employers. At the Broderick Law Firm we are here to help you stop wrongful sexual harassment in the workplace.

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