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January 2010

California Court of Appeal Further Clarifies What Constitutes Sexual Harassment

Haberman v. Cengage Learning Inc., ___ Cal.App.4th ___ (2009)

The California Court of Appeal recently affirmed the grant of summary judgment in favor of an employer in a sexual harassment and retaliation case. This case is instructive from both legal and business viewpoints. First, Haberman illustrates what type of conduct does not meet the criteria for sexual harassment and retaliation as a matter of law. Second, the case shows that those in the business world would benefit from keeping workplace relationships on a professional level because, even if a future lawsuit is completely meritless, the company and individual defendants must participate in the litigation process.

The facts in Haberman demonstrate how a disgruntled employee can splice together a series of isolated comments into a sexual harassment lawsuit. The plaintiff, Haberman, worked as a sales representative at a textbook publishing company. She and her supervisor, Bredenberg, worked closely as they attended conferences and traveled to various sales meetings. Haberman's eventual lawsuit for sexual harassment and retaliation was based on thirteen separate incidents and comments over the course of a three-year period. Among other things, Bredenberg told Haberman that she was "drop dead gorgeous," he had the "hots" for her and wanted to date her, that she was amazing for having "five children with no father in the picture," asked her several times if she had friends who only wanted a sexual relationship with him, and asked how she "looked so pretty so early in the morning."

Because Haberman had failed to meet her sales goals for the third consecutive year, Bredenberg and another supervisor, Reed, counseled her several times over the course of five months and warned her that she would be placed on a performance improvement program (PIP) if her sales did not improve. She was eventually placed on PIP, and she filed a sexual harassment and retaliation complaint with the company's human resources department two days later.

In affirming the trial court's grant of summary judgment, the Court of Appeal first held that none of Bredenberg's comments constituted sexual harassment as a matter of law. The Court applied the standards for sexual harassment claims recently reiterated by the California Supreme Court in Hughes v. Pair, 46 Cal.4th 1035 (2009), which explained that hostile work environment sexual harassment is actionable only when it is pervasive or severe. This means that "occasional, isolated, sporadic, or trivial" conduct is not sexual harassment as a matter of law. However, while this does not mean that isolated acts can never be actionable, those acts must be "severe or extreme." An isolated incident can be actionable if it involves a "physical assault or a threat thereof." Thus, short of actual or threatened physical harm, a single highly vulgar comment is not actionable.

Applying Hughes, the Court of Appeal held that although the comments were "too personal and inappropriate" for the workplace, they were made over the course of several years and thus did not rise to the level of "a concerted pattern of harassment of a repeated, routine, or generalized nature." Moreover, because Haberman had never been physically threatened or assaulted in any way, these sporadic incidents could not constitute actionable sexual harassment as a matter of law.

Turning to the retaliation issue, the Court of Appeal upheld the grant of summary judgment because Haberman complained to human resources after she had been warned for several months and placed on PIP. The Court noted that because Haberman's supervisors had no knowledge of her complaint at the time they placed her on PIP, this discipline could not have been imposed in retaliation for the complaint. Morever, the discipline was justified because there was substantial evidence that Haberman had failed to meet her sales goals for three consecutive years.

The takeaway lesson from this case for those in the business world is clear: you can diminish the likelihood that you will be sued if you act professionally in the workplace. Haberman was able to weave together a series of sporadic unprofessional comments precisely because those comments had actually been made. While it is true that the sexual harassment laws are not, as the Court of Appeal noted, "a civility code and not designed to rid the workplace of vulgarity", such unprofessional behavior in the workplace can lead to a very long - and public - lawsuit.

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Employment Law

Employment Law