Employers Are Not Liable For Sexual Harassment Based On Sporadic, Unrelated, And Isolated Events

By: Frances Rogers
October 21, 2011

American Movie Channel's acclaimed television series Mad Men is a theatrical representation of a Manhattan advertising agency set in the 1960's in which female secretaries of the agency are shown subjected to constant, sexually laced comments and advances by the all-male executives of the agency.  Seemingly tolerated and accepted by society at the time, it is a reminder how far our laws have come to ensure that everyone has the right to earn a living without having to endure a work environment permeated with demeaning comments and conduct because of an individual's sex or other protected status.

While our state and federal legislators have enacted laws to combat the type of sexual harassment often depicted in this television show, our laws have not gone so far as to hold an employer liable for every little off-putting comment.  Our laws are not intended to act as a rule on manners.  This was no more exemplified than in a recent case involving alleged sexual harassment in a Southern California advertising agency set in present time and against the back drop of the Fair Employment and Housing Act ("FEHA")

In the case of Brennan v. Townsend & O'Leary Enterprises, Inc., the female plaintiff had been hired by the advertising agency in 1991.  In 2000, she helped to plan a bachelorette party for a coworker who was made to wear a veil with plastic penises attached to it.  Following the party, a manager had the coworker put the veil on for about five minutes during a staff meeting while she was asked to recount what happened at the party. Plaintiff alleged she was offended by the manager's conduct, but did not make a complaint.

In 2000 and 2001, the plaintiff's manager asked her about her personal life and she would tell him about the men she dated.  She once revealed she had acquired a sexually transmitted disease from a previous boyfriend.  On one or more occasions, her manager asked her if she "got any of that" and clapped his palms together several times (alluding to sex).  Plaintiff also attended the office Christmas party in 2000 or 2001 where another manager dressed as Santa Claus asked several of plaintiff's female co-workers to sit on his lap and asked them about their dating lives.  Although plaintiff was not asked to sit in his lap, she found the manager's conduct offensive, but she never made a complaint.

At another Christmas party in 2002 or 2003, plaintiff's manager wore a Santa's hat which had the word "bitch" across the brow.  Plaintiff found the hat offensive, but never complained about it.  In August 2004 a supervisor sent an email to another supervisor about an individual leaving that agency.  The e-mail stated, "Three down, one big-titted, mindless one to go."  The e-mail was inadvertently forwarded to the individual leaving the agency and that individual forwarded the email to plaintiff.  Plaintiff understood the e-mail as referring to her and was offended.  Plaintiff brought the e-mail to the attention of her supervisor who said he would take care of it.

After the email, paintiff intentionally sought out past and present employees of the agency to find out whether there were other examples of sexual harassment at the agency.  She learned that one female co-worker had received an e-mail from her supervisor that referred to a female client in a derogatory way. On another occasion, the same supervisor verbally called the female client by other derogatory names.

The August 2004 e-mail about plaintiff was brought to the attention of the agency's manager who issued a letter of reprimand to the manager for violating the company's sexual harassment policy.  Plaintiff felt this was not enough and she told the manager that she was aware of other instances of sexual harassment which she had learned about during her investigation.  However, she refused to reveal the names of the employees involved.  The plaintiff asked the manager to "constructively discharge" her with a compensation package. The manager stated he wanted plaintiff to stay at the agency and to help improve the working environment. 

The agency then brought in someone from outside the agency to investigate sexual harassment in the agency's workplace, but plaintiff refused to speak to him.  Shortly thereafter, plaintiff resigned.  She then brought suit against the agency for, among other things, wrongful termination in violation of public policy and sexual harassment.  During trial, the court granted a motion for nonsuit in favor of the defendant on the wrongful termination cause of action.  After a jury returned a verdict in favor of the plaintiff on the cause of action for sexual harassment, the trial court entered a judgment notwithstanding the verdict in favor of the employer, finding that there was insufficient evidence of sexual harassment to support the jury's verdict.  Plaintiff appealed, but the Court of Appeal affirmed.

Under the FEHA it is unlawful for an employer to subject an employee to different terms and condition of employment because of the employee's sex, race, national original, disability, or other protected status. Discrimination can take many forms, including sexual harassment.  Prohibited sexual harassment ranges from expressly or impliedly conditioning employment benefits on, submission to, or tolerance of, unwelcome sexual advances that create a work environment where the harassment is sufficiently pervasive so as to alter the conditions of employment and create an abusive work environment.

An employee seeking to prove sexual harassment must show that the conduct was either singularly severe in nature (e.g. sexual assault or sexually offensive touching) or a continuous and pervasive course of offensive conduct that permeated the work environment. Sexual conduct that involves or is aimed at persons other than the plaintiff is considered less offensive and severe than conduct that is directed at the plaintiff.  Where offensive conduct is not directed at the plaintiff, the plaintiff must make an even higher showing by establishing that the sexually harassing conduct permeated her direct work environment.

The court held that neither the August 2004 e-mail nor any evidence at trial showed that plaintiff was ever assaulted, subjected to unwelcome physical contact, threatened, propositioned, or subjected to explicit language directed at her or at anyone else in her presence.  Therefore, the employer's conduct was not singularly severe.

The court also held that the other events did not constitute such pervasive harassment that it altered plaintiff's working environment.  The August 2004 e-mail was the only incident of harassment based on plaintiff's gender directed at her and, even then, the e-mail was not intended to be sent to her.  The incidents witnessed by the plaintiff and directed at other employees (i.e. the wearing of the veil at a staff meeting; the Santa Claus incident; and the manager's wearing of the Santa hat) occurred over a period of four years and long before the August 2004 e-mail.  This did not constitute a legally cognizable pattern of continuous and pervasive harassment.

As to the manager's questions about plaintiff's dating life, the evidence was vague as to how frequently this occurred and the plaintiff admitted that she volunteered some of the details about her dating life.  As to plaintiff's "investigation" into other acts of sexual harassment experienced by other female co-workers which occurred outside of plaintiff's presence, the court held that these incidents were not probative in any respect as to whether sexual harassment permeated plaintiff's work environment.  Accordingly, the evidence was insufficient to support any finding that the employer was legally liable for a sexually hostile work environment.

This case reaffirms that FEHA does not create a "civility code" and is not intended to hold an employer legally accountable for sporadic and isolated inappropriate comments that may be made by people in the workplace. That said, employers should maintain a "zero tolerance policy" within their workplaces prohibiting any amount of inappropriate or vulgar statements or conduct.  In this manner, employers can be proactive in ensuring that sporadic and isolated comments do not progress to the point of becoming severe or pervasive and legally actionable.

Liebert Cassidy Whitmore publishes this article as a service to our clients and other friends for informational purposes only. It is not intended to be used as a substitute for specific legal advice or opinions and the transmission of this information is not intended to create an attorney-client relationship between sender and receiver. You should not act upon this information without seeking professional counsel. 

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