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Total Articles: 32

Supervisor’s Conduct Supported Same-Sex Harassment Claim, California Court Rules

Finding an intern had produced sufficient evidence for a reasonable jury to conclude his supervisor engaged in a pervasive pattern of harassing conduct “because of sex,” including numerous gifts, frequent lunch purchases, along with sexual jokes and displays of pornographic computer images, the California Court of Appeal has allowed his harassment suit to proceed, reversing a lower court’s summary judgment against the plaintiff. Lewis v. City of Benicia, No. A134078 (Cal. Ct. App. Mar. 26, 2014). The Court further found the trial court erred in excluding evidence of the alleged harassment in the intern’s retaliation claim against the City of Benicia and ordered a retrial on the retaliation claim.

Male To Male Name Calling Deemed Sexual Harassment

In junior high school, boys used to think it was funny to tease each other with taunts like “gay,” “fag” or other such names. Most mature men outgrow the practice, but clearly not everyone. When such taunting happens in the workplace, can legal problems ensue? Most definitely. In a recent California case titled Taylor v. Nabors Drilling, LP, a group of male workers frequently made gay jokes about a heterosexual male co-worker. The court determined that such conduct can constitute unlawful sexual harassment.

Co-Worker Permitted To Sue For False Harassment Claim

We all know that sometimes sexual harassment claims are valid, and other times they are false. If an employee is falsely accused of sexual harassment, does he or she have any recourse against the accuser for defamation? The answer depends on where and how the accusations are made, as a California appellate court ruled recently in a case titled Cho v. Chang.

California Sexual Harassment Law Amended, Sexual Desire Not Required

California Governor Jerry Brown has signed into law a revision to the definition of sexual harassment under the California Fair Employment and Housing Act to make clear that employees who assert claims of sexual harassment need not show the harassment is motivated by sexual desire. The new law becomes effective on January 1, 2014.

Under New California Law -- No Proof of Sexual Desire Required to Prove Sexual Harassment

On August 12, California Governor Jerry Brown signed into law Senate Bill (SB) 292 which amends section 12940 of the California Fair Employment and Housing Act. The bill addresses the decision in Kelley v. Conoco Companies and clarifies that an individual who sues for sexual harassment under state law need not prove that the sexually harassing conduct was motivated by sexual desire.

California Employers, 2013 is Training Year for Sexual Harassment Prevention

The deadline for training under AB 1825, the California law designed to instruct supervisory employees and managers in the prevention of sexual harassment at the worksite, is December 31, 2013.

Connecticut Governor Vetoes Bill Regulating Non-Compete Agreements

On July 12, 2013, Governor Dannel Malloy vetoed legislation that would have limited the use of non-compete agreements in Connecticut (which we covered in a recent issue of the Connecticut eAuthority). The bill would have imposed certain requirements on the use of non-compete agreements in the context of mergers and acquisitions. Using his veto authority, Governor Malloy sent the law back to the state’s General Assembly, citing its potential to produce legal uncertainty and ambiguity due to undefined and unclear terms.

Court of Appeal Affirms Summary Judgment on Sexual Harassment Claim and More

The Court of Appeal's decision in McCoy v. Pacific Maritime Association covers a lot of ground. The opinion contains analysis of a variety of issues important for pre-trial and trial lawyers alike.

Harasser Sues For Discrimination; Court: Nice Try

When a company determines that an employee has engaged in harassment or other misconduct, termination of the wrongdoer often follows. We all know that the victims of harassment might sue the company, but what about the alleged wrongdoer? Does he or she ever have a claim for wrongful termination? While it is theoretically possible, a thorough and objective investigation makes it unlikely to succeed, as an appellate court explained in a recent case titled McGrory v. Allied Signal Technology, Inc.

Court of Appeal: Employee May Use Ralph Act in Certain Sexual Harassment Cases

Sylvia Ventura was a custodian, working for American Building Maintenance or ABM. According to her lawsuit, she suffered serious harassment, including touching, threats, etc. She sued not under the Fair Employment and Housing Act, but under what is known as the Ralph Act, Civil Code Section 51.7. That section provides in part:

Franchisor Could Be Liable for Franchisee’s Sexual Harassment

Can a restaurant franchisor be held liable for sexual harassment which occurs at a franchisee location? Franchisors that impose too much control over franchisee operations may end up sharing liability, according to a California appellate court in a case titled Patterson v. Domino’s Pizza, LLC.

Court of Appeal Imposes Franchisor Liability for Franchisee Harassment Claim

A Domino's franchisee's employee claimed sexual harassment against her supervisor and her employer, the franchisee (Sui Juris). However, she also sued franchisor Domino's Pizza. Normally, only the "employer" can be held liable for FEHA violations. But the victim, Patterson, claimed that Domino's was also her employer because of its control over franchisee Sui Juris. The trial court disagreed, but the Court of Appeal reversed.

Court of Appeal: Let Jury Decide Co-Worker Harassment Case

The Court of Appeal issued a "writ" of mandate, overturning a summary judgment order on a harassment claim. Mustafa Rehmani worked for Ericsson in Silicon Valley. He is Pakistani. Many of his co-workers are Indian. Rehmani claimed the Indian co-workers gave him a rough ride. The court describes a series of incidents, over a few months, in which there were political jokes, terrorism jokes, and the like. However, these jokes were pretty isolated, occurring about a month apart.

Verdict for Employee in California Sexual Harassment Case Affirmed Despite Inconsistent Testimony

Minor inconsistencies in witness testimony need not render a plaintiff-employee’s account of sexual harassment so “inherently improbable” as to require reversal of the jury’s verdict, the California Court of Appeal has held. The Court thus affirmed judgment in favor of the employee in a sexual harassment case.

Bachelorette Gag Gift, Bad Santa Insufficient Evidence of Employer Sexual Harassment

What happens when Santa gets out of control at the company Christmas party? What if bride-to-be brings a rather naughty bachelorette gag gift to work? Can an employee who witnesses this win a sexual harassment lawsuit? Not all crude conduct in the work place rises to the level of “sexual harassment.” Crude conduct that is occasional, isolated, sporadic, or trivial might violate company policy, but not the law. Where does it cross the line?

California Plaintiff Must Show Severe or Pervasive Harassment to Prevail, Appeals Court Rules

The California Court of Appeal has held that judgment for an employer is proper under California law where the plaintiff failed to present sufficient evidence that she was subjected to severe or pervasive workplace harassment based on her gender. Brennan v. Townsend & O'Leary Enterprises, Inc., No. G042398 (Cal. Ct. App. Oct. 18, 2010). Accordingly, the Court affirmed judgment notwithstanding the verdict in favor of the employer.

Crossing the Line: When Does Crude Conduct Become Harassment?

Not all crude conduct in the work place rises to the level of “sexual harassment.” Crude conduct that is occasional, isolated, sporadic, or trivial might violate company policy, but not the law. Where does it cross the line? In a recent unpublished California case titled Ramaiya v. Pacific Coast Care Center, the appellate court wrestled with the issue.

Court of Appeal: "Me Too" Evidence of Harassment Admissible to Prove "Intent"

So, a plaintiff in a sexual harassment case attempts to introduce evidence that the harasser harassed other employees, but not in the plaintiff's presence, and that the conduct was not directed to the plaintiff.

Sexual Harassment Prevention Training Record Requirements

My company is required to conduct supervisor sexual harassment prevention training according to California’s training law, AB 1825. What are the record keeping requirements associated with the training?

Court of Appeal Rejects Same-sex Harassment Claim

Sounds like sexual harassment? Wrong. The court of appeal decided that the supervisor's verbal abuse was not truly based on Kelley's sex. Therefore, although rude, the conduct was not actionable under the Fair Employment and Housing Act.

Court of Appeal: Sexual Harassment Claim Untimely

You have to file an administrative charge with the Department of Fair Employment and Housing within a year of the last act about which you claim is harassment, discrimination, or retaliation. So, when Irene Trovato testified at her deposition that the last time Michael Allyn harassed or retaliated against her was January 31, 2007, the charge she filed on May 8, 2008, was untimely.

CAN SEXUAL HARASSMENT BE PART OF THE JOB?

Sexual harassment litigation most often involves claims by employees that co-workers or supervisors have created a "hostile work environment". But the anti-harassment laws do not stop there. Unlawful workplace harassment also may come at the hands of non-employees, such as customers, vendors, and others who interact with employees.

Lawyer’s Insensitive Statements Not Harassment, Says State Commission. But He’s Ordered To Attend Harassment Training Anyway

There is a line between illegal harassment and just plain asinine conduct. But the line is ill-defined, and employers and employees often find themselves in litigation arguing over where the line should be drawn. In a recent California state agency enforcement action titled Department of Fair Employment and Housing v. Lyddan Law Group, a lawyer stayed on the legal side of the line (barely), but was still ordered to attend harassment training.

Retaining Employees Accused of Harassment.

With the passage of Assembly Bill 1825, the law that requires many California employers to provide sexual harassment training to supervisors, today’s employers are better informed about how to prevent, recognize, and respond to inappropriate workplace conduct than ever before. But even when an employer follows best practices designed to eliminate workplace harassment, the process will not be perfect. Employees and others in the workplace will continue to engage in conduct contrary to an employer’s specific direction and policies.

Effective Anti-Harassment Training.

Benjamin Franklin’s declaration that “an ounce of prevention is worth a pound of cure” rings true today as it did in the 1700’s. In the workplace context, for example, anti-harassment and discrimination training (i.e., “EEO” training) is the “ounce of prevention” that helps prevent unlawful discrimination, harassment and retaliation claims. Even employers who do not believe in Franklin’s idiom may be required to heed it.

California Appellate Court Follows Cal Supreme Court, Rejecting Sexual Harassment Case.

Not all sexual conduct in the workplace is “sexual harassment.” It is a question of degree. An employer who sexually harasses an employee can be liable for damages under both federal law (title VII of the Civil Rights Act of 1964 (Title VII)) and California law (the Fair Employment and Housing Act (FEHA)) when the sexually harassing conduct is so “pervasive or severe” that it alters the conditions of employment. What kind of conduct is sufficiently “severe?” What makes conduct “pervasive” enough to qualify as sexual harassment? In a case titled Haberman v. Cenage, Inc. , A California appellate court recently answered these questions, and in doing so applied the rules stated in the 2009 California Supreme Court titled Hughes v. Pair.

Cal Supreme Court Rejects Sexual Harassment Claim; Conduct Not Severe or Pervasive.

Not all sexual conduct in the workplace is “sexual harassment.” It is a question of degree. An employer who sexually harasses an employee can be liable for damages under both federal law (title VII of the Civil Rights Act of 1964 (Title VII)) and California law (the Fair Employment and Housing Act (FEHA)) when the sexually harassing conduct is so “pervasive or severe” that it alters the conditions of employment.

Sexual Orientation Discrimination: Co-Worker Misconduct: Once a Harasser, Always A Harasser.

When an employee alleges sexual harassment, an employer has an obligation to investigate and promptly stop the harassment. But even where the employer stops the sexual harassment, the employer may face a lawsuit if the accused continues to engage in workplace shenanigans. Potentially any sort of subsequent misconduct by the accused directed at the victim, even if it is not sexually loaded, may be viewed as another form of harassment. The recent California appellate case Dominguez v. WaMu provides an illustration.

Court Reverses $1.4 Million Spanking Verdict Due To Flawed Jury Instructions.

A state appellate court in California recently reversed a $1.4 million jury verdict in favor of an employee who claimed that she and others were spanked during company sales meetings. According to the California Court of Appeal, since the jury was not instructed that to prevail the employee had to show that the harassment occurred because she was female, the verdict could not stand. Orlando v. Alarm One, Inc., No. F050759, F051470, California Court of Appeal, Fifth Appellate District (January 14, 2008).

Three Instances of Harassing Behavior Did Not Create A Hostile Work Environment.

In In Mokler v. County of Orange, the California Court of Appeal found that the conduct alleged by Pamela Mokler, a employee of the County of Orange, did not rise to the level of actionable sexual harassment.

Correctional Officer Fails to State A Prima Facie Case of Harassment or Disparate Treatment.

In Jones v. California Department of Corrections & Rehabilitation, the California Court of Appeal affirmed summary judgment for the California Department of Correction and Rehabilitation (“CDCR”) and against plaintiff Kim Jones on her claims for gender discrimination – hostile work environment; sexual harassment; race discrimination; unlawful retaliation; assault and battery; intentional infliction of emotional distress; negligent infliction of emotional distress; and negligent supervision and retention of employees.

Effective Employee Training Programs: Money In The Bank.

“We’ve been sued.” Those few words can strike panic in employers, particularly in California, where multi-million dollar verdicts in favor of employees are not uncommon. What can employers do to reduce their potential exposure for workplace related claims? Adopting and fairly administering lawful policies and procedures is a good start, of course. However, employers also must take the next step to train employees about what is expected of them and the options available for resolving workplace issues within the organization.