Anyone who makes or supports a claim of sexual harassment, or is a witness for a claim of sexual harassment, may not be retaliated against in accordance with the California Department of Fair Employment and Housing Act and the Federal Law, Title VII. These are anti-discrimination laws that include protection for individuals who make, claim, or become witnesses for sexual harassment in the workplace.
The interesting thing about a retaliation claim is that the underlying sexual harassment claim does not need to have merit. Retaliation can arise merely because someone made a claim or supported a claim of sexual harassment, even if the claim did not legally constitute sexual harassment in the workplace under the strict rules of what constitutes sexual harassment. Thus, an employer can be responsible for retaliation, even if the underlying claim does not constitute sexual harassment.
The retaliation laws are to protect employees, even when the claim of sexual harassment is not legally sufficient.
Unfulfilled Threats May Negate “Carrot” Quid Pro Quo Sexual Harassment
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You are probably familiar with the old analogy of someone using a carrot or a stick to induce another to do something. In the context of quid pro quo (this for that) sexual harassment, a harasser could use a “carrot” or a “stick” to threaten a victim. For example, if a harasser uses a “carrot”, the harasser might say or imply to the victim that in exchange for a sexual favor, the victim would get a raise or promotion. If, on the other hand, the harasser uses a “stick”, the harasser might threaten the victim that if sexual favors were not provided, the victim would be fired or skipped over for promotion.
In a recent case, the California Supreme Court seems to have treated sexual harassment as though harassers only use the “stick” as opposed to the “carrot” approach. In a case where the harasser essentially asked for sex in exchange for a benefit to the victim, the Supreme Court said there was no quid pro quo harm because the harasser did not follow through with the threat. This analysis would apply if the harasser used the “stick” approach, but in the case decided by the Supreme Court, the harasser had used the “carrot” approach. It is implicit in the “carrot” approach that there are no apparent consequences other than that the victim does not get the carrot in the absence of providing the sexual favor.
Quid pro quo sexual harassment should rightfully include sexual harassment with the “carrot” approach as well as sexual harassment through the “stick” approach. Even though the harasser does not punish the victim in the “carrot” approach, a victim who is propositioned for sex at work in exchange for a benefit and refuses to provide sexual favors is precluded from the offered benefit. The Court’s failure to recognize the “carrot” approach may leave the victim without legal remedy. Oddly, an unwilling victim who submits to providing sexual favors would be a legal victim of sexual harassment whether or not that victim received the promised benefits from the harasser.
California Supreme Court Upholds Summary Judgment in Business Relationship Sexual Harassment Case Brought Under CC§51.9
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On Thursday, July 2, 2009, the California Supreme Court in Hughes v. Pair upheld summary judgment against the plaintiff in a sexual harassment case against her trustee, brought under California Civil Code §51.9, which prohibits sexual harassment in certain business relationships, including professional relationships with physicians, psychiatrists, dentists, attorneys, real estate agents, accountants, bankers, building contractors, executors, trustees, landlords, and teachers. The Court ruled that the trustee’s sexual requests to the plaintiff were neither quid pro quo nor hostile environment sexual harassment. However, it appears that the problem for plaintiffs is curable, at least as to the quid pro quo claims, with proper pleadings.
In this case, plaintiff Suzan Hughes, former wife of deceased Herbalife founder Mark Hughes, sued one of her trustees, Christopher Pair for sexual harassment. After Suzan’s trustees had voted to give her money for only one of the two months she requested for rental of an $80,000/month beach house in Malibu, Pair allegedly called Suzan and told her that if she was “nice” to him, he would get her the additional month’s rent, and told her to call him when she was ready to give him what he wanted. Later that same night at a museum, Pair made an extremely vulgar sexual advance toward Suzan.
The California Supreme Court also found that the alleged conduct did not constitute quid pro quo sexual harassment by Pair because his comments “at most amount to unfulfilled threats.” The Court notes that the plaintiff in this case failed to allege that she was harmed because of her rejection of Pair’s sexual advances. From the facts, it seems that if the plaintiff had alleged that as a result of her rejection of Pair’s advances, Pair in fact kept her from getting the $80,000 for the second month’s rent, then the California Supreme Court may have reached a different conclusion, and overturned the summary judgment based on quid pro quo sexual harassment.
The California Supreme Court ruled that this conduct was not pervasive because the conduct only consisted of comments Pair made during one telephone call and one other brief statement occurring that same day. The Court ruled that the conduct was not severe because while the court acknowledges that Pair’s advances were “vulgar and highly offensive,” the Court did not see the statement Pair made at the museum as a “threat to commit a sexual assault.”
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The Broderick Law Firm for Victims of Sexual Harassment and Employment Discrimination
Sexual Harassment and Discrimination
Sexual harassment can include unwelcome sexual advances, requests for sexual favors, verbal conduct, or physical conduct which affect or interfere with an individual’s work performance or create an offensive work environment for that individual.
Sexual discrimination can include failure to hire or adverse employment action due to gender or sexual orientation. The Broderick Law Firm believes strongly in the fair treatment of all individuals regardless of sex and is committed to representing individuals who have been victims of sexual harassment in the workplace. Mr. Broderick has the experience and knowledge necessary to help you recover the damages you are due. He will vigorously pursue your claim of sexual harassment or sexual discrimination to get you a positive result.
“Quid Pro Quo” Sexual Harassment
“Quid Pro Quo” sexual harassment is when a supervisor makes sexual conduct of an employee a condition for employment benefits or advancement or a condition for avoiding adverse employment action or for advancement.
Hostile Work Environment Sexual Harassment
Hostile work environment sexual harassment occurs when an employee is subject to unwelcome sexual advances or offensive gender-related language or behavior that is sufficiently severe or pervasive from the perspective of a reasonable person with the same fundamental characteristics as the offended employee.
This type of harassment must be sufficiently severe or pervasive to alter the conditions of the offended employee’s employment and create an abusive environment. A single instance of sexual harassment in the “hostile work environment” context may be sufficient, but repeated instances increase the severity of the events, so that a reasonable person would be more likely to find the conduct sexually harassing due to its repetition.
In regard to unwanted sexual advances, a complaining employee must generally show that he or she gave notice that the advances are unwelcome.
Although favoritism by a supervisor towards an employee with whom the supervisor is having a consensual sexual affair does not ordinarily constitute harassment of other employees, a pattern of sexual favoritism may constitute a hostile work environment in the event that the message by management is that sexual affairs are a way to get ahead in the workplace.
Retaliation
It is illegal for an employer to retaliate against a sexual harassment or discrimination victim for making a claim of sexual harassment, for participating in a sexual harassment investigation, or for opposing discriminatory practices.