Finding the Facts - Disciplinary and Harassment Investigation

gathering after work. “The co-worker’s invitations, viewed in that context and from the perspective of a reasonable person, would not have created a hostile work environment and therefore did not constitute sexual harassment.” 205 CAUTION : Despite finding in favor of the employer, these cases do not relieve an employer from its duty to investigate what may appear to be a single or minor incident of harassment. Additionally, a single incident of harassment may be a violation of district policy. The Ninth Circuit held that a co-worker’s sexual comments did not create a hostile work environment, but the employee’s termination following her complaints may constitute unlawful retaliation. 206 Just once, the employee’s supervisor called the employee’s duties “girly work” and then quickly apologized. The employee’s co-worker made a series of sexual comments around her, including talking about the breast size of other women. In reviewing the evidence, the Court held that while it did not condone the co- worker’s crude and offensive remarks, he only made four of them and the employee only worked with the co-worker one day a week for three months. The Court agreed with the trial court that the conduct was not severe and pervasive enough to alter the terms and conditions of her employment and did not create a work environment that a reasonable person would find hostile or abusive.

Nevertheless, employers should address and remedy promptly, any seemingly minor acts of harassment in order to avoid the development of an unlawfully hostile work environment. The difficult decisions are based on conduct which is in between the two extremes of severe, physical touching and isolated, verbal utterances. This “gray area” requires considerations of the totality of the circumstances and application of the factors identified above using sound, well-reasoned judgment.

Case Studies In a 2012 Court of Appeals case, the court held that a cause of action under Civil Code Section 51.7 does not require evidence of hate . 207 A male supervisor made advances towards his subordinate female employee. The employee finally complained when her supervisor grabbed her, bit her, and put his arm across her neck so that she could not breathe or shout for help. She was told that the supervisor had "already had those problems in different buildings." The human resources director conducted a sloppy and incomplete investigation nearly a month after the incident. The supervisor was not disciplined for any of his conduct. Employee filed suit for violation of Civil Code section 51.7, which provides that "All persons within the jurisdiction of this state have the right to be free from any violence, or intimidation by threat of violence, committed against their persons or property because of . . ." specified characteristics, including sex. The jury found that the supervisor committed and threatened acts of violence against

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