October 21, 2011, by
In a lawsuit alleging hostile work environment harassment based on gender, a jury found that a former female employee at an advertising agency was subjected to unlawful harassment in violation of the California Fair Employment and Housing Act ("FEHA"). The plaintiff's hostile work environment claim was based on an email from an agency manager that referred to the size of her breasts, a different manager asking her about her personal and sex life, observing a management employee asking female co-workers to sit on his lap while dressed in a Santa Claus outfit at a Christmas party, and learning about alleged inappropriate comments directed towards other female employees that the plaintiff did not personally observe. The majority of these acts took place over the four year period before plaintiff resigned, and there was some evidence presented at trial that the plaintiff had used profanity at work and sent emails containing sexual references.
After the jury rendered a verdict in favor of the plaintiff on her hostile work environment claim, the Trial Court overturned the verdict. A California Court of Appeal affirmed, holding that the evidence presented by the plaintiff failed to support a claim of unlawful hostile work environment based on her gender. In so ruling the Court of Appeal noted that hostile work environment harassment is only unlawful when the harassing behavior is sufficiently severe or pervasive, and that the plaintiff failed to meet her burden because harassment that is occasional, isolated, sporadic or trivial is not actionable.
This decision is a helpful reminder of the high threshold that is necessary to prove an unlawful hostile work environment under the FEHA, as well as the fact that Courts will consider the specific circumstances in determining whether alleged acts of harassment are unlawful. To read the Court's decision in Brennan v. Townsend & O'Leary, Enterprises, Inc. 2011 Cal.App. Lexis 1309, click here.