“Potentially any sort of subsequent misconduct by the accused directed at the victim, even if it is not sexually loaded, may be viewed as another form of harassment.”
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California FEHA Update
Sexual Orientation Discrimination
Co-Worker Misconduct: Once a Harasser,
Always A Harasser
By Christopher W. Olmsted
When an employee alleges sexual harassment, an employer has an obligation to investigate and promptly stop the harassment. But even where the employer stops the sexual harassment, the employer may face a lawsuit if the accused continues to engage in workplace shenanigans. Potentially any sort of subsequent misconduct by the accused directed at the victim, even if it is not sexually loaded, may be viewed as another form of harassment. The recent California appellate case Dominguez v. WaMu provides an illustration.
The Harassment Allegations
Yoko Dominguez sued Washington Mutual Bank (WaMu) and WaMu employee
Javier Gutierrez for violating the Fair Employment and Housing Act (FEHA; Gov. Code, § 12900 et seq.), alleging that she had been harassed by Gutierrez and eventually fired from her job at WaMu because she was a lesbian.
Within two weeks after she was hired, it became known that Ms. Dominguez was a lesbian. Soon after, in around March 2002, mail services coworker Gutierrez began making crude and offensive comments to Dominguez relating to her sexual orientation.
Dominguez complained to a manager. After the complaint, Gutierrez stopped making the sexual orientation comments.
However, Gutierrez began “interfering with Dominguez’s work” by several means: throwing balls of paper that would jam up the wheels of her pallet jack; stacking heavy boxes in areas that blocked her access to various work stations; and by telling her that he had no mail to send, then later changing his mind after she had prepared all the other mail for distribution, forcing her to re-sort the mail and revise her written report about her work output. Gutierrez also began to whistle an offensive tune whenever he walked by Dominguez.
Ms. Dominguez repeatedly complained about this new type of misconduct, although it is not clear that she deemed it sexual harassment. Her supervisor verbally reprimanded Gutierrez, but the conduct did not stop.
In August 2002, her supervisor offered Dominguez a permanent position. But this offer was retracted, and she was fired a few days later because, said the supervisor, she was repeatedly late for work.
Ms. Dominguez filed a claim with the Department of Fair Employment and Housing (DFEH) in August 2003 and then sued for sexual orientation harassment and retaliation.
WaMu moved for summary judgment on four primary grounds: (1) Dominguez
did not file the mandatory administrative complaint with the DFEH within one year of the last discriminatory act, meaning she failed to timely exhaust her administrative remedies; (2) she could not show that WaMu knew or had reason to know what Gutierrez was doing; (3) Gutierrez’s conduct was not bad enough to constitute unlawful harassment and discrimination; and (4) WaMu fired Dominguez for a legitimate reason based on her frequent tardiness.
The trial court granted the motion, but the court of appeal reversed that ruling. The appellate court’s rationale provides an important lesson for all employers.
Lawsuit Was Timely
An aggrieved employee must file a charge with the DFEH within one year of the unlawful conduct. WaMu argued that the verbal taunts in March 2002 took place more than one year prior to the August 2003 date that Dominguez filed her DFEH charge, rendering her claim untimely. The court of appeal rejected this claim, citing the “continuing violation” rule.
Picture a long freight train. If the locomotive pulls into the station on time, the caboose also arrives on time even if it is half a mile back, because it is part of the same train. Likewise, according to the continuing violation rule, if any conduct that is part of a “continuing violation” takes place within the one year limitation period, the claim is timely. The court of appeal found that although Mr. Gutierrez stopped making sexual orientation-theme verbal taunts in March 2002, he later interfered with Ms. Dominguez’ work during the one year limitation period. The court determined that a jury could reasonably infer that these subsequent acts were part of a continuous effort to harass Dominguez based on her sexual orientation.
It didn’t matter that the subsequent conduct was dissimilar to the sexual orientation-laden verbal taunts. A jury might decide that it was just another flavor of harassment. “Discriminatory behavior comes in all shapes and sizes,” wrote the court, “and what might be an innocuous occurrence in some circumstances may, in the context of a pattern of discriminatory harassment, take on an altogether different character, causing a worker to feel demeaned, humiliated, or intimidated on account of her gender.”
Employer Had Reason to Know Of Misconduct
WaMu argued that when Ms. Dominguez had complained to her direct supervisor about the way Gutierrez interfered with her work, she did not explain that she thought it was sexual harassment. However, the court noted that Ms. Dominguez had also told a higher level manager that Gutierrez “had found another way to harass her.” That manager promised to talk to the supervisor. The appellate court held that the trial court erred by granting summary judgment because a jury could conclude that Ms. Dominguez put WaMu on notice of the claim.
Co-Worker’s Conduct Was Harassment
The court of appeal concluded that Gutierrez’s offensive remarks were certainly abusive and hostile. Further, the harassing conduct was replaced by what appears to have been a daily or near daily campaign of interference with Dominguez’s work. A jury could find that the conduct was motivated by the same discriminatory intent. In short, the trial court erred by granting summary judgment; it should have permitted the case to go to a jury.
Termination For Tardiness “Tainted”
The court found that the termination decision, purportedly for tardiness, was suspect. The supervisor had offered to promote her two days before the termination, so earlier absences could not have been important. Ms. Dominguez claimed that the supervisor lied about the last absences. The court determined that a jury could infer that the termination decision was retaliation for complaining about the misconduct.
The Bottom Line:
If an employee has engaged in sexual harassment (or any unlawful harassment), the employer must certainly investigate and promptly take corrective action. But the risk of litigation lingers. Any sort of subsequent misconduct—even if it appears merely annoying and petty—may later be used in court to establish another form of continuing harassment.
It is therefore prudent for the employer to assure that the work environment is “hostility free.” Educate the accused employee. Let him understand how subsequent misconduct may be perceived. Warn him that any such conduct will lead to further discipline and/or termination. Also counsel the victim. Let him or her know how to follow up with complaints. Follow up periodically, and keep a record.
More Legal Update articles.
Download entire December 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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