Conduct Sufficiently Severe or Pervasive to Create an Unlawful Hostile Work Environment
The following Cases In Point demonstrate conduct that can be considered sufficiently severe or pervasive to find hostile work environment sexual harassment.
Case in point: Coerced Sexual Behavior
In the United States Supreme Court case of Meritor Savings Bank v. Vinson, the plaintiff agreed to over 40 acts of intercourse with her supervisor after repeated demands for sexual favors. The supervisor "fondled her in front of other employees, followed her into the women's restroom when she went there alone, exposed himself to her, and even forcibly raped her on several occasions." This set of facts obviously rose to the level of being sufficiently severe to constitute an unlawful hostile work environment.
Case in point: Foul Language
In Department of Fair Employment and Housing v. Nulton, there was a hostile work environment where, among other things, a male employee's repeated use of foul sex-based terms, such as "f-ing b-----" and others was severe within the meaning of FEHA "given these sex-based terms' inherently degrading and demeaning nature."
Case in point: Offensive Sexual References
In Steiner v. Showboat Operating Company, the Ninth Circuit found conduct sufficient to constitute a hostile work environment where the defendant had used the terms "dumb f-ing broad" and "f-ing c----." Even though the supervisor in that case was shown to be abusive to men, his abuse of women was different in that he relied on "sexual epithets, offensive, explicit references to women's bodies and sexual conduct." Similarly, in Burns v. McGregor Electronic Industries, Inc., the Eighth Circuit Court stated that vulgar and offensive phrases are "widely recognized as not only improper, but as intensely degrading."
Case in point: Pornographic Pictures
In Andrews v. City of Philadelphia, the defendant used derogatory and insulting terms relating to women and posted pornographic pictures in common areas at the place of employment, as well as in the plaintiff's personal work spaces. The Federal Third Circuit Court of Appeal found: "pervasive use of derogatory and insulting terms relating to women generally and addressed to female employees personally may serve as evidence of a hostile work environment."
Case in point: Nicknames and Centerfolds
In Lispett v. University of Puerto Rico, sexual harassment was found where the plaintiff and other female residents were given sex-based nicknames, Playboy centerfolds were displayed where residents ate their meals and conducted meetings, and misogynistic verbal attacks were repeatedly made.
Case in point: Threatening Stares
In Birschtein v. New United Motor Manufacturing, Inc., the court found that where a coworker repeatedly stared at the plaintiff, after the plaintiff had already complained to management about the coworker's explicit acts of sexual harassment, such facts could constitute an unlawful hostile work environment, and so reversed the summary judgment that had been granted by the lower court.
Coworker Bonilla had asked the plaintiff, Michelle, for a date three or four times. During this same time period, he had told her that he wanted to "eat her." When Michelle asked him what he meant, Bonilla responded, "I want to eat you all over." Upon hearing his response, Michelle yelled at him to leave. A few days later Bonilla told Michelle that he was having fantasies about her and described his fantasies in detail, which involved Bonilla putting Michelle in a bathtub and bathing her. Again upset, Michelle yelled at Bonilla to leave her alone. During the same period when Michelle would go outside for lunch and breaks, coworkers would tell her that Bonilla was looking for her. Michelle was so scared that she carried mace to work and complained to her boss. Following Michelle's complaint, Bonilla stopped talking to Michelle, but over the course of six months he would drive by her workstation five or more times per day to make deliveries and would invariably stare directly at her "for at least several seconds."
The court found that threatening stares could constitute sexual harassment, and stated:
Nor can we agree that, particularly in view of Bonilla's prior conduct, repeated acts of staring at a fellow worker cannot qualify as actionable sexual harassment as a matter of law… In Hirase-Doi v. U.S. West Communications, Inc.…, for example, a hostile environment case, the plaintiff alleged that Coleman, a fellow male employee, had engaged in sexually offensive behavior toward her and several female colleagues over several months. Much as defendant does here, the employer there argued that many of the plaintiff's complaints ‘involved only threatening stares - not sexual harassment.' … Rejecting the contention that threatening stares could not constitute actionable sexual harassment, the Tenth Circuit Court of Appeals said that "we have previously adopted a standard that ‘any harassment or other unequal treatment of an employee… that would not occur but for the sex of the employee may, if sufficiently … pervasive, comprise an illegal condition of employment under Title VII.'… We believe that Coleman's alleged threatening stares… in apparent retaliation for the complaints about his sexual harassment, were sufficiently related to the prior alleged sexual harassment that they could be found to constitute continuing sexual harassment…"
Case in point: Verbal Abuse and Touching
In Hall v. Gus Const. Co., Inc., the plaintiff suffered from continuous verbal abuse, requests for sex, unwanted touching at work, and urinating in the plaintiff's water bottles and gas tank. This pattern of continuous harassment constitutes unlawful hostile work environment sexual harassment.
Case in point: Preferential Treatment for Submission
In Broderick v. Ruder, the plaintiff was sexually harassed by several male supervisors and was able to show that the employer gave preferential treatment to female employees who submitted to sexual advances and conduct, and that it was common knowledge at the workplace that women were treated better if they submitted to sexual conduct. This set of circumstances constituted an unlawful hostile work environment. (See the discussion of Miller v. Department of Corrections in Section VII of this chapter discussing favoritism.)
Case in point: Repeated Requests for Sex
In Yates v. Avco Corp., the plaintiff's supervisors constantly made rude comments to her and repetitively made requests for sexual favors, and this created an unlawful hostile work environment.
In Henson v. City of Dundee, an unlawful hostile work environment was found where a police chief made numerous tirades, used vulgar language, and made demeaning sexual inquiries, as well as repeatedly asking the plaintiff to have sexual relations with him.
In Bundy v. Jackson, the plaintiff's supervisors directed sexual propositions, sexual stereotypes and vulgar language at her, such as "any man in his right mind would want to rape you." The court found that such misconduct constitutes an unlawful hostile work environment.
Case in point: Vulgar Slurs
In Katz v. Dole, a female air traffic controller was subjected to an unlawful hostile work environment where her coworker had routinely inflicted extremely vulgar and offensive sexual slurs and insults.
Conduct Not Sufficiently Severe or Pervasive to Create an Unlawful Hostile Work Environment
The following Cases In Point demonstrate conduct which was not sufficiently severe or pervasive to constitute hostile work environment sexual harassment.
Case in point: Rude and Inappropriate Behavior
In 2007, in the case of Mokler v. County of Orange, the Director of Orange County's Office on Aging, Pamela Mokler, filed a lawsuit claiming hostile work environment sexual harassment based on the conduct of a board member, Mr. Norby.
Norby's harassment consisted of three incidents over a five-week period. During the lunch break at an offsite budget meeting, Norby asked Mokler if she was married and called her an "aging nun" after she told him she was not married. About a week later at a hotel celebration Norby "took Mokler by the arm, pulled her to his body, and asked, ‘Did you come here to lobby me?' When she answered no, Norby responded: ‘Why not? These women are lobbying me.' He told Mokler she had a nice suit and nice legs, and looked up and down at her." About a month later, in Norby's office, he told her she looked nice and put his arm around her, asked her where she lived and demanded to know her exact address. He then put his arm around her again, and in the process, his arm rubbed against her breast. He then made an off-color racial remark. The court found that these incidents of harassment did not constitute unlawful hostile work environment sexual harassment because they were not severe or pervasive enough. The court's reasoning went as follows:
Following established precedent, we conclude these acts of harassment fall short of establishing ‘a pattern of continuous, pervasive harassment… necessary to show a hostile work environment under FEHA. Norby did not supervise Mokler or work in the same building with her. The first incident involved no touching or sexual remarks; rather, Norby uttered an isolated but boorish comment on Mokler's marital status. The second incident did not occur at work, and involved a minor suggestive remark and nonsexual touching. The third incident involved touching when Norby placed his arm around Mokler and rubbed his arm against her breast in the process. The touching, however, was brief and did not constitute an extreme act of harassment. Norby's request for Mokler's home address was brazen, but this conduct falls short of what the law requires to establish a hostile work environment. Norby's derogatory statement regarding Mexicans was unmistakably foul and offensive, but not sexual.
Taken as a whole, the foregoing acts demonstrate rude, inappropriate behavior. To be actionable, however, a workplace must be "permeated with discriminatory intimidation, ridicule and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment."
Case in point: Offensive Artwork
In Herberg v. California Inst. Of Arts, the court held that a 24-hour display of offensive artwork did not constitute an unlawful hostile work environment. In that case, students at a private art institute displayed a pencil drawing, about 25 by 40 inches, depicting faculty and staff members of the institute nude and engaged in various sexual acts.
Herberg, the 82-year-old plaintiff depicted in the center of the art piece, never actually saw the drawing. Upon learning of the drawing, Herberg left work immediately. She suffered an asthma attack later that day and developed problems with eating and sleeping. She never returned to her job at the institute. The court held that this incident, "although doubtless upsetting to the plaintiffs, did not create a workplace that was ‘so discriminatory and abusive that it unreasonably interfere[d] with the job performance of those harassed.'"
The court also takes into consideration the context and surrounding circumstances of harassment. The court in Herberg states:
The context in which the alleged harassment took place… supports our decision…. We see a vast difference between posting obscene cartoons in a men's room, as was done in Bennett … and the display of The Last Art piece in the designated gallery area at an art school. CalArt's noncensorship policy was widely distributed to both students and employees. In our view it was reasonable to expect that exhibitions of student artwork would, from time to time, include sexually explicit material. Although we reject CalArt's contention that its anticensorship policy and the First Amendment exempt it from the laws against sexual harassment, in this case the context of the display further militates against a finding of severe or pervasive harassment.
The Herberg court takes a strict view of what is necessary for a single incident of sexual harassment to constitute an unlawful hostile work environment. Herberg states that in order for liability for sexual harassment for a single incident, that incident must involve "egregious conduct akin to a physical assault or a threat of physical assault."
Herberg goes on to cite three federal cases in which the facts are fairly egregious, but the court did not find hostile work environment sexual harassment. In the worst of these three cited federal cases, the 1987 case of Del Valle Fontanez v. Aponte, the defendant "pressed [the plaintiff] against the door with his body" and the plaintiff "felt defendant's erect sexual organ against her body" twice in a five-minute period, and yet the court found that such conduct was not severe or pervasive enough to constitute a hostile work environment.
State courts in California are not bound by the holdings of these particular federal cases; however, these citations in Herberg are troubling because Herberg is cited by the California Supreme Court in Lyle v. Warner Bros. Television Prods., the Friends case discussed previously. It is likely that the California Supreme Court will uphold the general rule confirmed in Lyle that offensive touching (battery) or threatening behavior (assault) will be sufficient to present a case to a jury to decide if there has been sexual harassment. But see Downes v. FAA below, where a coworker touched a women's hair twice and a court found that was not enough to constitute sexual harassment.
Case in point: Single Proposition
In Jones v. Flagship Intern, the plaintiff's supervisor made two suggestive remarks and a single proposition and the court found that this did not amount to an unlawful hostile work environment.
Case in point: Vulgarity and Nude Pictures
In Rabidue v. Osceola Refining Co., the court found that the totality of the workplace had not been affected for the plaintiff, even though a coworker was extremely vulgar and nude pictures were present.
Case in point: Winks and Proposition
In Scott v. Sears, Roebuck & Co., isolated winks, suggestive remarks and a coworker's single request for a date did not constitute unlawful hostile work environment sexual harassment of the plaintiff.
Case in point: Touching Hair
In Downes v. F.A.A., the defendant made mildly offensive comments to the plaintiff on three occasions and touched her hair twice. This misconduct was not pervasive enough to constitute an unlawful hostile work environment.