Understanding Hostile Environment Harassment

In deciding if harassment is sufficiently severe or pervasive to create a hostile work environment, the EEOC traditionally evaluates the harasser’s conduct from the objective viewpoint of a “reasonable person.” If the challenged conduct would not substantially affect a reasonable person’s work environment, then the conduct doesn’t violate the law. ​​In Harris vs. Forklift Systems, Inc., the U.S. Supreme Court ruled that hostile environment sexual harassment exists if the conduct creates an “objectively hostile or abusive environment” that the victim subjectively perceives as abusive. Factors used to determine the perception’s validity include the frequency of discriminatory conduct, its severity, whether the conduct is physically threatening or humiliating and whether the conduct unreasonably interferes with work performance. An employee can pursue a hostile environment claim even if he/she was subjected to only limited offensive sexual conduct. Both federal and California courts have held that proof that pervasive sexual harassment was directed at other female employees is evidence of a hostile work environment.

Reasonable Victim Standard: In Ellison v. Brady, the Ninth Circuit Court of Appeals decided that to determine if a hostile work environment exists, a court should determine if a “reasonable woman” in the position of the female victim, rather than a “reasonable person,” would consider the conduct sufficiently severe or pervasive to create a hostile working environment. When evaluating the severity and pervasiveness of sexual harassment, courts should focus on the victim’s perspective and not stereotyped notions of acceptable behavior. “If we only examined whether a reasonable person would engage in allegedly harassing conduct, we would run the risk of reinforcing the prevailing level of discrimination. Harassers could continue to harass merely because a particular discriminatory practice was common, and victims of harassment would have no remedy,” the court reasoned. According to the court, a complete understanding of the victim’s view requires an analysis of the different perspectives of men and women and, more importantly, the perspective of the individual who is making the harassment allegations. The court noted that the concept of what a “reasonable victim” would consider sufficiently severe or pervasive to create a hostile work environment can change over time. The standard of what is acceptable behavior should mirror those changes. Even if the intention is not hostile, if a person in the victim’s position, whether male or female, would consider the conduct offensive enough to alter working conditions, there could be basis for a sexual harassment claim. This is true even if the person who makes the comment intended it to be a compliment without sexual overtones. 

Hearsay and Sexual Harassment: An employee cannot successfully claim hostile work environment sexual harassment based only on her belief that other women in her workplace were harassed and that her employer was not vigorously investigating those complaints. The Second Circuit Court of Appeals held that “sexual harassment by hearsay” is not “sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment.” In Leibovitz v. New York City Transit Authority, the court considered the case of Diane Leibovitz, a New York Transit Authority employee who allegedly suffered emotional trauma when she heard about the harassment of other women in her workplace. Leibovitz admitted she was unaware of the harassment at the time it was happening. A jury rejected Leibovitz’s claims that she was harassed personally. The court held that harassment of others in the workplace, which Leibovitz did not witness and which came to her through hearsay, did not adversely affect the terms and conditions of her own employment. The court said the harassment “might as well have been going on in a nearby office of another firm, or been the subject of an infuriating newspaper article, or been a false rumor of a kind that would be upsetting if true.” Allowing claims under these circumstances “would open the door to limitless employer liability, and allow a recovery by any employee made distraught by office gossip, rumor, or innuendo.” Although the court rejected sexual harassment by hearsay, it did reaffirm that evidence of harassment directed at co-workers can be used to support an employee’s claim that he/she was personally subjected to harassment.

Obscenities, Slurs and Sexual Harassment: Obscenities in the workplace can create a hostile work environment sufficient to constitute sexual harassment. If obscenities are directed toward one gender, they may constitute sexual harassment. Remember, under FEHA, harassment does not need to be motivated by sexual desire to be actionable. In one case, DFEH v. Sigma Circuits, Inc., a supervisor constantly used obscenities such as “son of a bitch” and “goddamn” and accompanied these expressions with sexual jokes about oral copulation and attempts to peek under women’s skirts. The case went before an administrative tribunal, which found that the supervisor created a hostile work environment and engaged in sexual harassment. The employer was held liable for the harassment, and the supervisor was held personally liable as the employer’s agent. In another case, Singleton v. U.S. Gypsum, an employee alleged that abusive comments were directed specifically at his sexual identity as a male. The court ruled that this conduct would not have been directed at a female and thus occurred because of the employee’s sex. Companies can be held liable for sexual harassment when employees are subjected to slurs based on gender stereotypes. In Nichols v. Azteca Restaurant Enterprises, Inc., the Ninth Circuit Court of Appeals held that harassment and slurs based on stereotypes of how men and women should act amount to sex discrimination and violate sex discrimination laws. Although FEHA prohibits harassing conduct that creates a work environment that is hostile or abusive on the basis of sex, FEHA does not outlaw sexually coarse and vulgar language or conduct that merely offends and is not based on either sexual interest or “animus” — hostility based on the person’s gender. In Lyle v. Warner Brothers Television, the California Supreme Court considered if sexual discussions among the writers of the television program Friends exposed a staff member who heard the discussion, as part of her job, to hostile work environment sexual harassment under FEHA. The court rejected the employee’s sexual harassment suit. In doing so, the court announced a valuable guide to understanding the conduct that creates a hostile work environment. Although the writers engaged in lewd talk and gestures, the talk did not involve and was not aimed at the employee or any other women in the workplace. Therefore, the court argued, no reasonable person could conclude that the particular comments were severe enough or sufficiently frequent to create a work environment hostile or abusive to the employee. The use of vulgar or sexually disparaging language may be relevant to show discrimination or harassment. However, supervisors or co-workers who use crude language in front of employees without directing sexual innuendos or gender-related language toward an employee or women in general, do not create a hostile work environment. The critical issue is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed. A plaintiff must prove that the language contains more than offensive sexual connotations. The language must actually constitute discrimination because of sex. Offensive physical or verbal conduct that is directed at another person is generally considered less offensive and severe than conduct directed at the complaining employee and requires greater severity or frequency to result in liability. An employee who does not suffer a loss of tangible job benefits must show that the sexually harassing conduct created a hostile working environment.

Single Incident of Sexual Harassment: Hostile environment harassment generally occurs when there is severe and pervasive conduct. A single incident may support a lawsuit depending on severity and effect on the employee’s work environment. For example, physical groping on a single occasion may amount to sexual harassment, depending on its nature. In Brooks vs. City of San Mateo, the Ninth Circuit Court of Appeals held that a single episode of sexual harassment does not support a claim of hostile work environment under Title VII of the Civil Rights Act. Although the court described the harasser’s actions as “rather unsavory,” “highly offensive,” and “highly reprehensible,” the court held the actions did not rise to the level of harassment under Title VII. The case involved a female telephone dispatcher whose co-worker fondled her and commented on her sexiness. She told him to stop and pushed him away, but a few minutes later he forced his hand underneath her sweater and fondled her again. The dispatcher immediately reported the incident. The harasser was removed from the workplace. He eventually resigned when he was faced with termination. The court found there was no hostile environment sexual harassment because the harassment happened during a single occasion for a matter of minutes in a way that did not impair the employee’s ability to do her job in the long-term, especially because the employer took prompt steps to remove the harasser from the workplace. The court noted that only an “extremely severe” single instance of sexual harassment would sufficiently establish a hostile work environment claim. The court would require showing that a reasonable woman would consider the single incident of harassment sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment.

Same Sex Harassment: An unwelcome sexual advance from a person of the same gender is considered sexual harassment. Under FEHA, an unwelcome sexual advance of an employer toward an employee of the same sex is considered sexual harassment. In Mogilefsky v. Superior Court, a California Court of Appeals decided that sexual harassment includes unwelcome conduct of a verbal or physical nature, regardless of the gender or sexual orientation of the harasser or victim. The court also stated that the harasser’s motive was irrelevant. In Medina Rene v. MGM Grand Hotel, Inc., the Ninth Circuit Court of Appeals also ruled that, in certain cases, harassment that is motivated by a person’s sexual orientation can violate Title VII. Medina Rene was a butler on a VIP floor of the MGM Grand Hotel in Las Vegas. An all-male butler and supervisory staff staffed the floor. Rene alleged that, over a two-year period, he experienced physical and verbal abuse motivated by his homosexuality. He did not allege that hostile treatment was influenced by the sexual desire of co-workers or by a demand for and refusal to engage in sexual activity. In the absence of any female co-workers, he could not allege that he was treated differently because he was male. The court reasoned Rene suffered harassment that was sexual in nature, for example, the body parts that were subjected to the unwanted touching. Although the motivating factor in this case was Rene’s sexual orientation, the court found harassment of a sexual nature actionable under Title VII.

Sexually Oriented Posters: Sexually oriented posters in the workplace could create a hostile work environment sufficient to constitute sexual harassment. In Robinson v. Jacksonville Shipyards Inc., a female shipyard employee sued her employer, claiming that a number of posters and calendars depicting nude or scantily dressed women were consistently allowed to be posted in the shipyard. The court held that sexually oriented pictures created a hostile work environment, and that these posters unlawfully stereotyped women as sex objects. 

Staring and Sniffing as Sexual Harassment: In Birschstein v. New United Motor Manufacturing, Inc., a California Court of Appeal held that staring, even when it is not done in a sexually suggestive manner, may constitute sexual harassment. The court considered a case in which a female employee alleged that a male employee stared at her two to 10 times each day, each stare lasting from several seconds to 10 minutes, though never in a sexually suggestive manner. She had earlier reported the same man to her employer for overt sexual harassment, at which time he stopped speaking to her and began a staring campaign. The court could not take the overt acts of harassment into account in the case because they were more than one year old and barred by the statute of limitations. However, the court held that a violation of gender-based harassment laws could be found based on the pattern of overt sexual harassment, followed by a complaint, followed by a retaliatory act; in this case, the staring. In Billings v. Town of Grafton, a woman complained to her employer about her supervisor’s “leering” at her breasts, conduct that continued over a period of years. The employer demoted the woman after she complained. The supervisor and the employer were found liable for hostile work environment sexual harassment and retaliation, in violation of federal law. The court emphasized that a “mechanical formula” does not exist to identify a hostile work environment and that each case must be analyzed on a case-by-case basis. The court examined the conduct’s severity from a reasonable person’s perspective. The court considered the frequency and severity of the conduct, whether the conduct is threatening or humiliating or a mere offensive utterance and whether the conduct interferes with an employee’s work performance. The court concluded that a male supervisor’s repeated stares at a female subordinate’s chest are inappropriate and offensive, not merely unprofessional. This behavior was unwelcome, occurred over a period of years and was confirmed by other employees who worked with the harasser. In Royal v. CCC&R Tres Arboles, LLC, an employee, Tonia Royal, worked as a leasing manager for an apartment complex for only four days. Royal sued her employer for sexual harassment under federal law, which provides similar protections against sexual harassment as California law. Royal worked at the only desk in a small front office. Royal claimed that two maintenance workers repeatedly entered her office, hovered over her head as she sat at the desk, and sniffed her. She alleged that each worker did this about 12 times over the course of her brief period of employment. Sometimes the maintenance workers came in together, and sometimes each came in separately. She complained about the behavior to her supervisor and also to the assistant manager, who told her to “let it slide.” After she was fired, she filed a lawsuit against her employer. A federal trial court initially dismissed Royal’s claims before trial, finding that the conduct was not unlawful under Title VII. The lower court judge reasoned that “no one touched Royal” and the conduct was not objectively offensive. Royal appealed the dismissal. The 5th Circuit Court of Appeal ruled for her, allowing her to proceed to trial with her claims. “The sniffing and hovering over a woman, by two men, in a small, confined space could be viewed by a reasonable jury as harassment based on Royal’s sex,” the court said.