[COLUMN] When unwelcome or offensive conduct creates an illegal hostile work environment

JANE Doe worked in the office of the California Department of Corrections and Rehabilitation (CDCR). She and another CDCR employee who worked in the same location, Correctional Officer Luis Serna, became sexually involved. Serna recorded their sexual encounter at her home. He then disclosed the video to their co-workers, and eventually, to others outside of work. Jane Doe had not consented to the video’s disclosure.

Several months later, Jane Doe learned about the video’s distribution. She complained to prison officials about it and told them that she was experiencing sexual harassment because of the video disclosure. Jane Doe eventually sued the CDCR and several officers for sexual harassment. A few months later, she resigned from CDCR. Three months after her resignation, CDCR issued a finding that the distribution of the video constituted sexual harassment.

In her lawsuit, Jane Doe alleged that the actions of Serna and other CDCR officers constituted sexual harassment in the workplace. She claimed that the events caused her to suffer emotional distress, leading to her resignation. She was so traumatized by what happened that she continues to need mental health treatment.

Courts recognize two types of sexual harassment. The first type is called quid pro quo harassment. This harassment exists when submission to a sexual conduct is made a condition of employment benefits such as a promotion, a pay increase, or a job itself. A classic example would be the boss who threatens to fire an employee if the employee refuses to have sex with him or her.

The second type involves harassment resulting from a “hostile work environment.” California law “declares that harassment creates a hostile, offensive, oppressive, or intimidating work environment and deprives victims of their statutory right to work in a place free of discrimination when the harassing conduct sufficiently offends, humiliates, distresses, or intrudes upon its victim, so as to disrupt the victim’s emotional tranquility in the workplace, affect the victim’s ability to perform the job as usual, or otherwise interfere with and undermine the victim’s personal sense of well-being.” California law follows the standard set forth by Justice Ruth Bader Ginsburg who wrote “…that the harassment so altered working conditions as to make it more difficult to do the job.”

Courts have ruled that to prevail in a hostile work environment lawsuit, the employee must prove that the unwelcome or offensive conduct was either pervasive (meaning, not an isolated incident) or severe (e.g. threats of violence against safety and well-being). Courts use both an objective and subjective “reasonable person standard” when determining whether a hostile work environment exists.

The CDCR argued that the circulation of the video involving Jane Doe was not workplace harassment and it was neither severe nor pervasive.

However, California law states that “A single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment if the harassing conduct has unreasonably interfered with the plaintiff’s work performance or created an intimidating, hostile, or offensive working environment.”

The case went to trial. The Daily Journal reports that the jury found in favor of the employee’s claims of sexual harassment in the workplace, failure to prevent harassment, and gender discrimination. They awarded her $650,000 in emotional distress damages, $59,555 for lost wages, and $1,327,270 in costs and attorneys’ fees.

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The opinions, beliefs and viewpoints expressed by the author do not necessarily reflect the opinions, beliefs and viewpoints of the Asian Journal, its management, editorial board and staff.

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The Law Offices of C. Joe Sayas, Jr. welcomes inquiries about this topic. All inquiries are confidential and at no-cost. You can contact the office at (818) 291-0088 or visit www.joesayaslaw.com. [For more than 25 years, C. Joe Sayas, Jr., Esq. successfully recovered wages and other monetary damages for thousands of employees and consumers. He was named Top Labor & Employment Attorney in California by the Daily Journal, consistently selected as Super Lawyer by the Los Angeles Magazine, and is a past Presidential Awardee for Outstanding Filipino Overseas.]

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