Plaintiff Jorge Pérez–Cordero brought claims that he was sexually harassed by Santiago, his female supervisor, and retaliated against by Wal-Mart’s management, for his attempts to oppose the harassment.
While the district court had granted summary judgment in favor of Wal-Mart on the grounds that the plaintiff could not show that the female supervisor’s conduct was unwelcome, pervasive, or because of sex, the First Circuit Court of Appeals disagreed and vacated the summary judgment in favor of the plaintiff.
Jodie Fisher’s attorney sent Ex-CEO of HP, Michael Hurd, a letter accusing Hurd of sexual harassment and offering to settle Ms. Fisher’s complaints outside of court.
The Mark Hurd scandal was widely covered by the press. Allegedly, while HP found no evidence of sexual harassment, they asked Hurd to step down for allegedly abusing his expense account and exercising poor judgment in hiding his alleged affair with Ms. Fisher, and was given a multi-million dollar separation package from HP. Hurd then immediately began work as co-president of Oracle Corp. As a result, a shareholder brought a lawsuit against HP. Hurd intervened in the lawsuit to attempt to keep the settlement letter sent by Ms. Fisher confidential.
Hurd is arguing that the letter should be kept confidential to protect his constitutional right to privacy. Hurd further argued that his act of bringing the letter to the board of director’s of HP did not make the letter public.
HP is arguing that Hurd had no reasonable expectation of privacy regarding the settlement letter concerning Ms. Fisher’s sexual harassment claims and that the letter was never confidential because it was sent to Hurd in his capacity as HP’s CEO and because it was key in HP’s decision regarding Hurd..
Nafissatou Diallo, the hotel maid who accused Dominique Strauss-Kahn of sexual assault, filed a civil lawsuit against him on Monday.
This move may hurt the criminal case which is still pending against Strauss-Kahn. Prosecutors are still deciding whether to pursue a criminal indictment against Strauss-Kahn. The fact that Ms. Diallo filed a civil lawsuit against Strauss-Kahn can be used by the defense to portray her testimony in the criminal case as financially motivated. Also, any sworn statements made by Ms. Daillo give the defense material for cross-examination in the criminal trial.
For these reasons, it is often best to wait until a criminal trial is finished before pursuing a civil lawsuit.
In Life Technologies Corporation v. Superior Court, the California Court of Appeal found that courts must balance the privacy rights of non-party employees with the legitimate discovery needs of plaintiffs in employment cases.
The Life Technologies Court reversed a trial court order requiring the defendant employer to produce information about the employer’s current and former employees.
In the decision, the Life Technologies Court found that employees have a recognizable privacy interest in their personal contact information and their employment records. The Court found that although in some circumstances a plaintiff’s need to obtain certain information will outweigh the recognized rights to privacy, the balance will favor privacy for confidential information in third party personnel files unless the litigant can show a compelling need for the particular documents and that the information cannot reasonably be obtained through depositions or from non-confidential sources. Further, the Court found that even when the balance does weigh in favor of disclosure, the scope of disclosure must be narrowly circumscribed.
The Court found that when a trial court determines that information about non-party employees is discoverable, the trial court must provide such non-parties the opportunity to object to the disclosure of documents or information before the documents or information is released.
On August 8, 2011, in the case of Okoli v. City of Baltimore, the Fourth Circuit Court of Appeals overturned the trial court’s summary judgment, and found in favor of plaintiff Katrina Okali, the sexual harassment and retaliation victim. Ms. Okoli alleged that her boss forcibly kissed her, fondled her leg, propositioned her, asked sexually explicit questions, described sexual activities he wished to perform, and then, after she spurned the advances and filed a harassment complaint, fired her. The Fourth Circuit Court found that because those allegations are sufficient to make out claims of hostile work environment, quid pro quo harassment, and retaliation, the defendant’s summary judgment was vacated.
In analyzing Ms. Okoli’s hostile work environment sexual harassment claims, the Court looked to the totality of the circumstances, including the “frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” The Court found that Ms. Okoli “suffered upwards of twelve incidents in four months: (1) disparaging jokes about gays and lesbians; (2) comments about Okoli and Jacuzzi fantasy; (3) comments about Okoli and group sex fantasy; (4) questions about Okoli’s underwear; (5) comments about sexual relations with another African–American woman; (6) additional inquiries about Okoli sitting on lap and Jacuzzi fantasy; (7–10) three incidents of fondling her leg under a table; (11) forcible kissing; [and] (12) more propositions to join in a Jacuzzi fantasy.” The Court notes that some of the incidents may have been severe enough to be actionable in and of themselves.
The Court also made reference to the significant “disparity in power,” between the alleged harasser, a political appointee who heads an agency with more than a hundred employees, and Ms. Okoli, who was a new secretary whose job required her to have a lot of one-on-one contact with her boss.
The defense had argued that Ms. Okoli’s work environment could not have been hostile because the harasser did not interfere with Ms. Okoli’s work, since Ms. Okoli argued that she performed well in her job. The Court shot down this theory, stating that Ms. Okoli can argue that the harasser negatively impacted her work, while still defending her performance against the City’s attempt to show a legitimate basis for firing her. The Court stated, “the fact that a plaintiff continued to work under difficult conditions is to her credit, not the harasser’s.”
In an important win for sexual harassment victims on August 9, 2011, the California Court of Appeals for the Fifth District, in the case of Pantoja v. Anton, reversed a jury’s defense verdict, ruling that the trial court erred in not allowing the jury to hear evidence of other alleged harassment against non-parties and involving conduct that occurred outside the plaintiff’s presence and before the plaintiff’s employment. The Pantoja Court found that the trial court had incorrectly excluded such evidence as character evidence under Evidence Code §1101(a), because the evidence was admissible as evidence of a discriminatory or biased intent or motive under Evidence Code §1101(b).
This case will help victims of sexual harassment in California by clarifying that so-called “me too” evidence of other employees that have been sexually harassed by the defendant can be used to show the motive and bias of the defendant in sexually harassing the plaintiff, regardless of whether that witness was employed at the same time as the plaintiff or whether the plaintiff was aware that the witness was also discriminated against.