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(November
2001)
(2 Court Cases) What is Harassment?
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All Employers
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Immediately
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In
two recent cases, the Courts have conspired to confuse employers
further regarding harassment law. In Brooks v. San Mateo,
a co-worker touched a fellow employee's breast in a single,
isolated incident. The federal Ninth Circuit Court of Appeals
held that woman could not state a sexual harassment claim against
her employer. About the same time, in the case of Birschtein
v. New United Motor Manufacturing, Inc. a California Court
of Appeal held that the act of staring at a fellow employee
may, under certain circumstances, constitute sexual harassment.
While these decisions (and the press they have received) may
make employers think the courts have lost their collective
minds, the fact is that these cases make sense - if you look
carefully at the applicable law.
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The
Brooks case involved a single act by a coworker and the question
of whether the employer should be held liable. (Note: the employee
who grabbed the plaintiff was independently prosecuted for
sexual battery.) The law says that an employer will be liable
for acts of coworker harassment only if the employer knew or
should have known of the harassment and failed to take corrective
action. In Brooks, the plaintiff was unable to establish
that this was the case, particularly since this was an isolated
incident and the employer had no reason to expect the groping
to occur. The Court noted that if the groping culprit had been
a supervisor, the standard would be different, and even a single
incident might be sufficient to hold the employer liable.
Despite
the hype, in Birschtein, there was a lot more than just
staring that occurred. A coworker of the plaintiff repeatedly
asked her out on dates, told her of his sexual fantasies and
made many lewd comments to her. The plaintiff complained to
management, and the harasser was told to stop the conduct.
Although the harasser never spoke to the plaintiff again, he
would repeatedly enter her work area five or six times a day
and stare directly at her for several seconds at a time, and
that he would appear upset and/or hostile. This went on for
more than six months. In this context, the harasser's conduct
does not seem so benign. Moreover, the employer was aware of
the staring and consciously decided not to take any corrective
action. For this reason, the court held that the employer was
liable for the unnerving staring of the harasser.
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These
cases illustrate the importance of taking immediate corrective
action whenever there is a potential problem. In the Brooks
case, the employer avoided liability because it did not allow
the problems to continue. In Birschtein, the employer chose
not to address the residual hostility. Employers should not "split
hairs" over whether or not conduct might legally rise
to the level of "harassment;" instead, employers
should strive to resolve workplace friction whenever possible.
This might not only prevent a finding of liability, it may
also serve to prevent a lawsuit from being filed at all.
This
material is a general overview of the subject matter, and
is not meant to provide professional opinions regarding any
specific case, matter, or set of facts, or to substitute
for the professional advice of Waag and Co. Instead, please
contact Susan S. Waag, Esq. for additional information. Use
of this information is allowed, provided that credit is given
to: Susan S. Waag, attorney; Waag and Co.; September 2001
Employer Bulletin; INFO@WaagandCo.com;
(805) 783-2300
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