“The prohibition of harassment on the basis of sex requires neither asexuality nor androgyny in the workplace.”
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SEXUAL HARASSMENT UPDATE
Spanking Employees: Sexual Harassment or Just a Bad Idea?
By Christopher W. Olmsted, Esq.
Seriously? Spanking employees? Yes, it happened. But was it sexual harassment? In a recent unpublished California appellate court case, Orlando v. Alarm One, Inc., the court examined that very question. The answer has implications of general application, so read on even if you work in a spank-free environment.
Janet Orlando worked as a salesperson for Alarm One, Inc., a security alarm company. Every morning, before the sales teams went out to sell, there would be a meeting of the field supervisors and a meeting of the salespersons. At the latter, a field supervisor would lead the meeting; the salespersons were given training and motivated to go out and sell alarm systems door-to-door.
The meetings had a pep rally atmosphere, with yelling, chanting, and cheering. At other offices of Alarm One, the motivational techniques used at the meetings included bonuses, singing in front of the group, pies in the face, eating baby food, wearing diapers, and spanking. Employees would be spanked for arriving late at a meeting or for losing a sales competition.
Ms. Orlando attended these meetings and was the recipient of spankings for about three and one-half months, until one day Ms. Orlando and another female employee complained that they had been injured. In response, the company informed its employees that spankings were unacceptable.
The new rule did not mollify Ms. Orlando. She sued for assault, battery, sexual assault and sexual harassment. After a trial, the jury figuratively spanked Alarm One by awarding a total of $500,000 in compensatory damages and imposed $1 million in punitive damages.
On appeal, the appellate court determined that the jury had received erroneous instructions, and ordered a new trial.
The error had to do with the issue of whether the spanking was harassment based on sex. The court noted that to prevail on a claim of hostile work environment sexual harassment, an employee must demonstrate that he or she was subjected to sexual advances, conduct, or comments that were (1) unwelcome; (2) because of sex; and (3) sufficiently severe or pervasive to alter the conditions of his or her employment and create an abusive work environment.
Quoting the California Supreme Court’s recent ruling in Lyle v. Warner Bros. Television Productions, the court stated: “For FEHA claims … ‘To plead a cause of action for [hostile work environment] sexual harassment, it is “only necessary to show that gender is a substantial factor in the discrimination, and that if the plaintiff ‘had been a man she would not have been treated in the same manner.’ … Accordingly, it is the disparate treatment of an employee on the basis of sex--not the mere discussion of sex or use of vulgar language-that is the essence of a sexual harassment claim.”
Explaining further, the court quoted other California cases. “The purpose of the FEHA is to eliminate invidious discrimination, not to ban all allusions to sex in the workplace.” “The prohibition of harassment on the basis of sex requires neither asexuality nor androgyny in the workplace; it forbids only behavior so objectively offensive as to alter the ‘conditions' of the victim's employment.” “It does not forbid ‘ordinary socializing in the workplace--such as male-on-male horseplay or intersexual flirtation.’”
The jury was not instructed that the harassment must have been based on sex. The court noted that there was conflicting evidence on this issue. On one hand, both male and female employees were given spankings. Further, the company asserted that the spankings were related to teambuilding and sales motivation, not sex. On the other hand, some of the female employees testified that the spankings of the women, but not the men, were tinged with gender-specific sexual connotations (the specifics of which I will spare you, gentle readers) on at least three occasions.
Thus, the court directed that the matter return to the trial court for a new trial with proper jury instructions. It remains to be seen whether a new jury will interpret the spankings as sexual harassment.
Take Away Tips:
Physical horseplay among employees, particularly that which may be misconstrued, should be discouraged. Even if the spankings turn out not to constitute illegal sexual harassment, they have wreaked havoc in the form of costly litigation and unhappy employees.
By the same token, not all sexually tinged conduct or comments amount to sexual harassment. In every instance, employers ought to take reasonable steps to prevent such conduct and respond to complaints, but it is essential to understand the legal standard before reaching conclusions about sexual harassment.
More Legal Update articles.
Download entire March Legal Update in PDF format.
This article is intended as a brief overview of the law and are not intended to substitute as legal advice. Any questions or concerns regarding any statute or case law should be addressed to a licensed attorney. Copyright © 2008 by Barker Olmsted & Barnier, APLC. San Diego, California. All rights reserved.
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