The critical issue in hostile work environment cases is the severity or pervasiveness of the unwelcome sexual conduct. Such incidents of sexual conduct should be viewed in their totality to determine whether the terms, conditions or privileges of employment have been altered to create a hostile work environment. Harris v. Forklift Systems, Inc. (1993) 510 U.S. 17, 114 S.Ct. 367. In each case, the court should inquire into the overall composite effect of all the incidents on the working environment. Hillen v. Merit Systems Protection Bd. (Fed.Cir. 1994) 21 F.3d 1572.
Generally, the requisite severity or seriousness of the offensive conduct varies inversely with the pervasiveness or frequency of the conduct. Thus, a single extremely severe action, such as an offensive touching, may be enough to establish sexual harassment, but generally, repeated incidents create a stronger claim for hostile work environment. Ellison v. Brady (9th Cir. 1991) 924 F.2d 872. Verbal harassment alone may constitute a hostile work environment. It is up to the trier of fact to determine whether the nature, frequency, context, and intended target of the remarks rise to the level of harassment. Factors to be considered as a whole include the following: 1) whether the alleged harasser singled out the victim; 2) whether the victim participated in the activity; 3) the relationship between the victim and the alleged harasser; and 4) whether the remarks were hostile and derogatory.
It is always an issue as to where to draw the line between conduct that creates a hostile work environment and conduct that may be bothersome, but does not constitute a hostile work environment. The outcome of these cases are fact specific and depend on the totality of the circumstances. What follows are a few cases where the facts supported a finding of hostile work environment and cases where they did not.
In Page v. Superior Court (3NET Systems, Inc.) (1995) 31 Cal.App.4th 1206, 37 Cal.Rptr.2d 529, plaintiff’s supervisor regularly asked the plaintiff to perform oral sex on him, masturbated in front of her and asked if it turned her on. When the plaintiff complained to the company president, nothing was done. After taking a one month leave of absence for stress, she was terminated. The court held that such conduct was harassment and constituted retaliation against the plaintiff.
In Kelly-Zurian v. Wohl Shoe Co., Inc. (1994) 22 Cal.App.4th 397, 27 Cal.Rptr.2d 457, plaintiff’s supervisor repeatedly touched the plaintiff on her breasts, grabbed her buttocks and her crotch, and made many sexual comments about her over a period of three years. In this case, the court said that the conduct was not just limited to verbal abuse, or isolated episodes. Therefore, it easily met the test of a workplace permeated with discriminatory intimidation, ridicule and insult so severe and pervasive as to alter the conditions of the victim’s employment and to create an abusive working environment.
In Steiner v. Showboat Operating Co. (9th Cir.1994) 25 F.3d 1459, plaintiff worked as a floor person in a Casino. Her supervisor, and vice president of the casino called her names such as “dumb f____ broad”, and “c__t.” By his own admission, he once yelled at her for giving a free breakfast to two casino customers, saying “Why don’t you go in the restaurant and suck their d____s while you are at it if you want to comp them so bad.” The court held that although simple insults would not suffice, insults such as these that are sexual and public, constituted harassment and were therefore actionable. Also, the court found that a hostile working environment exists when a supervisor frequently makes sexual advances and comments to the female employees, calling the female employees “dogs” and “whores.” EEOC v. Hacienda Hotel (9th Cir. 1989) 881 F.2d 1504. By contrast, a mere isolated epithet usually fails to support a claim of hostile work environment based on sexual harassment. Meritor Savings Bank v. Vinson (1986) 477 U.S. 57.
A supervisor’s two suggestive remarks and a single proposition of a plaintiff was not considered to have created a hostile work environment. Rabidue v. Osceola Refining Co. (6th Cir. 1986) 805 F.2d 611, disapproved of in Harris v. Forklift Systems, Inc. (1993) 510 U.S. 17, 114 S.Ct. 367. Isolated winks, suggestive remarks and a co-worker’s single request for a date have also not been considered to have created a hostile work environment. Scott v. Sears, Roebuck & Co. (7th Cir. 1986) 798 F.2d 210, 214.
Similarly, a romantic relationship between a supervisor and an employee does not, without more, give rise to a sexual discrimination or sexual harassment claim under the FEHA or the public policy of California. Thus, a plaintiff’s claim that the defendant showed favoritism toward another employee with whom he had a romantic relationship does not state a cause of action for the plaintiff who was not part of the romantic relationship. Proskel v. Gattis (1996) 41 Cal.App.4th 1626, 49 Cal.Rptr.2d 322.
Samuel Jackson is a Managing Attorney, has a 30 years experience in civil litigation, including trials involving personal injury, products liability, employment matters and professional liability and a 40 years of trial experience.