Even if a manager says or does something incredibly stupid, you have a chance to fix the situation and avoid losing a sexual harassment lawsuit. That’s true even under California’s strict rules.
Courts focus on whether the conduct the employee objects to created a hostile work environment that was pervasive or severe. Factors courts consider include timing, frequency and the context of the conduct.
Don’t wait to respond to a complaint. When you act, act decisively.
Recent case: Stephanie Brennan worked for an advertising agency for 14 years before quitting because of what she called sexual harassment. However, her tenure was marked by a close relationship with both owners, a husband and wife. She admitted that she often discussed personal topics with the husband, including describing some aspects of her sex life.
Brennan didn’t raise sexual harassment until someone forwarded her an email sent by a manager. The message discussed several people who were being terminated, and included this note: “Three down, one big-[breasted], mindless one to go.” Brennan assumed this was a reference to her and complained to the owner.
The owner said he would investigate the email, as well as Brennan’s claims that other women had been subjected to sexual harassment. Meanwhile, Brennan said she was going to quit and wanted a severance package.
The agency launched an investigation, but Brennan refused to participate. The owner disciplined the manager who had authored the offensive email and informed Brennan that further conduct like that would not be tolerated. He did not, however, agree to her demand for severance pay.
Brennan then quit and sued. A jury awarded her more than $200,000 for having to work in a sexually hostile work environment. However, the ad agency appealed.
The Court of Appeal of California overturned the verdict. It said that Brennan hadn’t worked in a sexually hostile work environment based just on the one email. It noted that several other incidents she said happened during her 14-year tenure with the ad agency happened long ago, mostly at nonwork events such as Christmas parties. Therefore, they weren’t frequent enough, severe enough or recent enough to count.
The court likened Brennan’s case to one the California Supreme Court decided a few years ago in which female writers for the TV show “Friends” complained that the male writers joked about female anatomy and used offensive words. However, none of those words were directed at the female writers. (Brennan v. Townsend & O’Leary, No. G042398, Court of Appeal of California, 4th Appellate District, 2011)
Final note: The court noted that none of the behavior that upset Brennan over the years was directed at her, with the exception of the one email. Even that was not sent directly to her and did not mention her by name. Plus, she appeared to have been a willing participant in sharing confidences about her sex life with the company owner. Those conversations were therefore not part of any sexual harassment she may have experienced at work.
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