Finding the Facts - Disciplinary and Harassment Investigation

Case Studies The California Court of Appeal held that a male co-worker’s repeated staring at a female co-worker may constitute a hostile work environment, even though there is no evidence of overt sexual advances. 209 The Ninth Circuit Court of Appeals held that three female employees could state a claim for a sex-based hostile work environment based on their male supervisor’s physically aggressive behavior toward them (e.g. shaking his fist in their faces, pumping his fist in their direction, or lunging towards them). Although the supervisor treated male employees the same way, the Court held that the employer may still be liable for his conduct toward women because courts look to whether a reasonable woman would be offended by the conduct. 210 The Ninth Circuit also held that hugging a subordinate can cause a hostile work environment. The Court noted that to overcome a summary judgment motion, the subordinate employee needed to show that her supervisor’s conduct was sufficiently severe or pervasive to alter her work conditions and create an objectively and subjectively abusive work environment. This standard was met based on her testimony that the supervisor hugged her more than 100 times over a 12 year period and the evidence that he hugged female employees far more often than male employees, if not exclusively. The Court also rejected “a sort of black letter rule,” derived from a few cases, that would allow hugs and kisses on the cheek as within the realm of common workplace behavior. 211 The Seventh Circuit Court of Appeals also held that an employee could establish a claim for a hostile work environment where a male co-worker would rub his crotch in front of the employee almost every day, asked her to leave her fiancé twenty times, and asked her out on dates between thirty and forty times, despite her repeated protests. 212 The Second Circuit Court of Appeals reversed summary judgment granted in favor of the employer. In considering the frequency of the conduct, the district court looked at a "five year" time period and found that the racial comments were cumulatively insufficient to establish a hostile work environment. But the Second Circuit found that the district court should not have considered the entire time period because the comments were primarily made in 2002 and then again in 2005. Considering the facts in the light most favorable to the plaintiff, the court should have discounted or disregarded the intervening period between comments by one supervisor and comments by another.213 The California Supreme Court held that the same evidence can support claims for both harassment and discrimination. Although discrimination and harassment are separate wrongs, some official employment actions taken in furtherance of a supervisor's managerial role can also have a secondary effect of

Disciplinary and Harassment Investigations ©2019 (e) Liebert Cassidy Whitmore 124