In a recent sexual harassment case, the jury found that the plaintiff had been subjected to an unlawful hostile work environment, and awarded her a quarter of a million dollars.  The trial court, however, rejected the jury’s verdict and entered judgment in favor of the defendants, and the appellate court affirmed in a published decision.  Brennan v. Townsend & O’Leary Enterprises, Inc.(2011) ___ Cal.App.4th ___.

Both California and federal law prohibit sexual harassment in the workplace.  Specifically, an employer can be liable where the harassment is sufficiently pervasive so as to alter the conditions of employment and create an abusive work environment.  On the other hand, employers generally do not face liability for harassment that is occasional, isolated, or trivial.

In the Brennan case, the court found that the only incident of harassment based on gender that was directed to the plaintiff was one email in which she was referred to as a “big-titted, mindless one.”  The court readily agreed that the email was rude, insulting, and unprofessional.  The court also considered the plaintiff’s complaints that she witnessed harassment of others several years prior to the email, for example, a male employee dressed as Santa Claus at a Christmas party and asking female employees (but not plaintiff) to sit on his lap, but found those incidences to be remote in time and not necessarily harassing.

One lesson to be learned from this case, however, is that while the court correctly applied the law and standards and found that the evidence did not support liability, the jury found otherwise.  An employer can avoid a jury by moving for summary judgment, and the Brennan case, and others before it, including Lyle v. Warner Brothers Television Productions (2006) 28 Cal.4th 264, should help employers establish that, as a matter of law, the evidence of harassment gathered by a former employee did not create a hostile work environment.

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