Under federal law and California's FEHA, the hostile work environment form of sexual harassment is actionable only when the harassing behavior is “pervasive or severe.”
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Sexual Harassment Update
Cal Supreme Court
Rejects Sexual Harassment Claim
Conduct Not Severe or Pervasive
By Christopher W. Olmsted
Not all sexual conduct in the workplace is “sexual harassment.” It is a question of degree. An employer who sexually harasses an employee can be liable for damages under both federal law (title VII of the Civil Rights Act of 1964 (Title VII)) and California law (the Fair Employment and Housing Act (FEHA)) when the sexually harassing conduct is so “pervasive or severe” that it alters the conditions of employment.
What kind of conduct is sufficiently “severe?” What makes conduct “pervasive” enough to qualify as sexual harassment? The California Supreme Court recently answered these questions in a case titled Hughes v. Pair.
Notably, Hughes v. Pair was not an employment case, but the Supreme Court applied sexual harassment standards from FEHA and Title VII.
A Very Wealthy Young Man
Mark Hughes, the founder of Herbalife International, Inc., died in May 2000, leaving his $350 million fortune to his 13 year old son Alex. The son’s mother, Suzan Hughes (who had been Mark Hughes’ third of four wives) was Alex’s guardian.
The estate appointed several trustees, one of who was Christopher Pair, a high-ranking Herbalife executive.
Ms. Hughes requested $180,000 to rent a villa in Malibu for 2 summer months. (Well, how else can a multimillionaire relax?) The trustees granted only $80,000 for one month. Ms. Hughes alleges that soon after, Mr. Pair made a number of offensive sexual remarks to her.
How About King Tut And A Little Romance?
Ms. Huges received a telephone call from Mr. Pair, to whom she had not spoken for at least three years. Mr. Pair said he was calling to invite Alex to accompany him and his nine-year-old son to a private showing of the King Tut exhibit that evening at the Los Angeles County Museum of Art.
But visiting a 3,330 year old mummy wasn’t all Mr. Pair had in mind. During the conversation, Mr. Pair called Ms. Hughes “sweetie” and “honey,” and said he thought of her “in a special way, if you know what I mean.” When Ms. Hughes asked why the trustees had authorized payment for the Malibu house rental for just one month, Mr. Pair suggested that he could be persuaded to cast his vote for an additional month if she would be “nice” to him. He added: “You know everyone always had a thing for you. You are one of the most beautiful, unattainable women in the world. Here's my home telephone number and call me when you're ready to give me what I want.” Responding to Ms. Hughes' retort that his comments were “crazy,” Mr. Pair said: “How crazy do you want to get?”
That evening, Ms. Hughes took Alex to the private showing at the museum. Mr. Pair was there with his son. After greeting Alex, Mr. Pair told plaintiff: “I'll get you on your knees eventually. I'm going to f**k you one way or another.”
The Lawsuit
Mr. Pair’s poor choice of pickup lines got him sued. Ms. Hughes’ complaint alleged that his statements, first on the telephone and later that evening at the museum, constituted sexual harassment.
Mr. Pair, in answering the complaint, denied making the statements. He then moved for summary judgment, asserting that even if it were assumed that the complaint's allegations were true, Hughes had stated no claim for relief.
Is It Sexual Harassment?
Under federal law and California's FEHA, the hostile work environment form of sexual harassment is actionable only when the harassing behavior is “pervasive or severe.”
Courts that have construed federal and California employment discrimination laws have held that an employee seeking to prove sexual harassment based on no more than a few isolated incidents of harassing conduct must show that the conduct was “severe in the extreme.”
Note that Ms. Hughes sued under Civil Code section 51.9, not the Fair Employment and Housing Act. That is because she was not in an employment relationship with Mr. Pair. Civil Code section 51.9 makes sexual harassment unlawful in certain business relationships outside the employment relationship. In this case, it was a business relationship between the trustee of an estate and the guardian of the beneficiary.
The California Supreme Court determined that the same legal standards regarding sexual harassment in the workplace apply in the context of a Civil Code section 51.9. The ruling is of interest to employers because of what the court said about how “severe” or “pervasive” conduct must be before it constitutes sexual harassment.
It Wasn’t “Pervasive”
Conduct becomes sexual harassment when it is so pervasive as to alter the conditions of a workplace. To be pervasive, the sexually harassing conduct must consist of “more than a few isolated incidents.”
The Court determined that Mr. Pair’s conduct was not pervasive. “As we have explained, the alleged sexual harassment consisted only of comments defendant made to plaintiff during a single telephone conversation and a brief statement defendant made to plaintiff in person later that day during a social event at a museum.”
In other words, a few inappropriate comments do not amount to sexual harassment.
It Wasn’t “Severe”
The court determined that these few statements were not severe either. Ms. Hughes attempted to argue that the comments were severe because Mr. Pair threatened her with physical violence when he told her at the museum: “I'll get you on your knees eventually. I'm going to f**k you one way or another.” The court rejected this assertion. “Although vulgar and highly offensive,” wrote the court “this remark, which was made in the presence of other people attending a private showing at a museum, would not plausibly be construed by a reasonable trier of fact as a threat to commit a sexual assault on plaintiff.”
Even if Mr. Pair was only threatening to use his power as a trustee to retaliate financially against Ms. Hughes or her son, the court determine that it was not “severe” harassing conduct.
It Wasn’t Quid Pro Quo
To establish “quid pro quo” sexual harassment under Title VII and FEHA, a plaintiff must show “that a tangible employment action resulted from a refusal to submit to a supervisor's sexual demands.”
Ms. Hughes alleged that Mr. Hughes threatened to restrict the release of trust funds unless she had sex with him.
The Court determined that these allegations were insufficient to establish quid pro quo sexual harassment because they were unfulfilled threats. She did not allege that, because she rejected his sexual overtures, Mr. Pair thereafter followed through on his alleged threat by using his authority, as one of three trustees administering the trust that plaintiff's deceased former husband had set up for their young son, to cause financial injury or hardship to plaintiff or to her son.
Without tangible retaliatory conduct, Ms. Hughes could not establish quid pro quo sexual harassment.
Accordingly, the California Supreme Court upheld the dismissal of plaintiff’s claims.
The Bottom Line
The bottom line is that the California Supreme Court has affirmed a high standard for sexual harassment. Isolated sexual comments and mildly offensive sexual conduct is certainly in poor taste, and against company policy, but it won’t rise to the level of illegal sexual harassment.
Does this mean that employers should not be concerned about sexual harassment? Certainly not. According to the DFEH, in California 3,863 sexual harassment claims were filed in 2008. That is over 10 complaints per day in the state. Employers must be ever vigilant. At the same time, however, one mustn’t rush to conclusions regarding what is offensive enough to constitute sexual harassment. The practical tips below provide some general guidance.
Practical Tips
Written Policies. Employers ought to have a written policy expressly prohibiting sexual harassment and describing the steps the company will take in response to a complaint. Be sure that the policy does not define harassment at a lower standard than the one established by the Supreme Court. Seek legal guidance for a properly worded policy.
Training. Train supervisors on the true definition of harassment, how to prevent misconduct and how to respond to complaints. California law mandates that employers with 50 or more employees or contractors must provide supervisors with two hours interactive training in the prevention of sexual harassment once every two years. Even if you employ fewer than 50, the training is a good idea! (Get started now—register for our August 13th supervisor training webinar, referenced below.)
Prompt Investigations. Immediately investigate any complaints and promptly take corrective action.
Don’t Call It Sexual Harassment. If you find sexually inappropriate conduct in the workplace, don’t be too quick to label it “sexual harassment.” Under the California Supreme Court’s standard, the conduct may not actually rise to that level. Call it a violation of company policy, but get legal advice before calling it something more.
Related articles:
Sexual Harassment Update: U.S. Supreme Court Protects Investigation Participant From Retaliation.
Sexual Harassment Compliance Review: Workplace Romance.
Sexual Harassment Prevention Training For Supervisors
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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 © 2009 by Barker Olmsted & Barnier, APLC. San Diego, California. All rights reserved.
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