A Victim's Guide to Sexual Harassment

Female Constable Sued for Sexual Harassment

Selin — Tue, 08 May 2012 19:51:10 +0000

A former Galveston County, Texas deputy named James Gist is suing his boss, a female constable named Pam Matranga.

Gist has accused Matranga of several inappropriate and crude acts. On one instance, Gist claims Matranga pulled her blouse over his head and pressed his head against her breasts. Another graphic encounter allegedly consists of Matranga joking about “chunky chick night” at a local strip club and then using Gist’s chair as a pole and gyrating her hips towards him. She also allegedly offered to give him extra vacation days for performing oral sex on her. These allegations, if true, would be a combination of both quid pro sexual harassment and hostile work environment sexual harassment. Gist has filed with the Equal Employment Opportunity commission and filed a lawsuit within this past month.

Matranga has denied the accusations and suggests that Gist’s claims of sexual harassment are in retaliation for her not accommodating his requests for a change in a legal document in his favor. She insists that her actions were taken out of context and are not grounds for a sexual harassment lawsuit. After Gist was caught purportedly trying to “bug” Matranga’s office to record some of her alleged inappropriate remarks, he was suspended and then resigned.

When asked to comment, Gist emphasized “The reality is that sexual harassment can happen to both men and women”. This is indeed the case. Both men and women can be subject to sexual harassment and the harasser does not necessarily have to be of the opposite gender. These non-traditional cases of sexual harassment are less common and perhaps more news-worthy when they occur. But these instances of sexual harassment are just as illegal under state and federal law and should not be tolerated in the workplace.

Hughes v. Pair Presents Potential Quid Pro Quo Loophole

Selin — Mon, 23 Apr 2012 19:34:06 +0000

The California Supreme Court in Hughes v. Pair (July 2009) ruled that sexual requests to a plaintiff, without consequential adverse action in response to a plaintiff’s refusal to comply with sexual favors, does not constitute quid pro quo sexual harassment. After the plaintiff’s trustees had voted to give her money for just one month for the rental of a beach house inMalibu, the perpetrator told the plaintiff that if she was “nice” to him, he would get her the additional month’s rent. Later that same day, the perpetrator, in vulgar language, said that he would have her sexually somehow.

First the Supreme Court judged the case by the standards of “pervasive” or “severe” that aptly apply to hostile work environment. The Supreme Court ruled that the perpetrator’s statements were not “pervasive” because the conduct only constituted comments made during one telephone call and one other brief statement occurring that same day. The justices decided that the conduct was not “severe” because the statements by the perpetrator did not amount to a “threat to commit a sexual assault” and implicitly because there was not an offensive touching.

The California Supreme Court then said that the conduct of the perpetrator was not quid pro quo sexual harassment, because his comments at most amounted to unfulfilled threats.

The Supreme Court created a potential loophole in quid pro quo sexual harassment. In the Hughes v. Pair case, the perpetrator proposed a benefit in exchange for sexual favors. If the perpetrator had proposed a detriment in exchange for sexual favors, and carried through with the
Whether or not a perpetrator’s behavior is sexual harassment should not depend upon the reaction of the targeted victim. The analysis of the California Supreme Court in Hughes v. Pair suggests that there is only quid pro quo sexual harassment when the targeted victim is vulnerable enough to submit to providing the sexual favor demanded.detriment, then that would certainly qualify as quid pro quo sexual harassment. So the question remains, if a perpetrator proposes either a benefit or a detriment in exchange for a sexual favor, and if the sexual favor is not granted and the perpetrator then does not follow through with the benefit or the detriment, then presumably there is no sexual harassment. Ironically, if the victim exchanges the sexual favor for the benefit or detriment, then that presumably is sexual harassment.

The Difference Between Sexual Harassment and Gender Discrimination

Selin — Fri, 13 Apr 2012 19:46:11 +0000

The California Fair Employment and Housing Act (FEHA) and the United States Federal law in Title VII of the Civil Rights Act (Title VII) prohibit discrimination and harassment based on the sex of an employee.

Harassment is conduct that is not necessary for the performance of a supervisory job, but is instead outside the scope of necessary job duties. The California Supreme Court in Jones v. The Lodge at Torrey Pines Partnership (2008) 42Cal. 4th 1158, 1164, noted that harassment is conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives.

Discrimination claims, by contrast, arise out of the performance of necessary personnel management duties, such as hiring, firing, and awarding promotions. Gender discrimination refers to discrimination by management in personnel decisions based on an employee’s sex.

Under FEHA, an employer of five or more employees can be liable for discrimination, but for liability for harassment an employer only needs to have one or more employees. An employer must have fifteen employees for liability for claims under Title VII.

Emotional Distress Claims

Selin — Tue, 10 Apr 2012 19:59:04 +0000

Victims of sexual harassment often add a claim for intentional infliction of emotional distress to their complaints.

To support a claim for intentional infliction of emotional distress, a plaintiff must prove that the defendant’s conduct was so outrageous that it exceeded all bounds that are usually tolerated in a civilized community. Severe emotional distress means emotional distress of such substantial quality or enduring quality that no reasonable person in a civilized society should be expected to endure it.

These high standards for proving severe emotional distress were reiterated by the California Court of Appeals in a case out of Orange County called Haberman v. Cengage Learning (2009) 180 Cal.App. 4th 365, which in turn relied on a 2009 case from the California Supreme Court, Hughes v. Pair (2009) 46 Cal. 4^th 1035.

Pervasive Cases in Point

Selin — Thu, 05 Apr 2012 18:34:33 +0000

To establish a claim of hostile work environment sexual harassment, an employee must prove that the sexual harassment was either sufficiently severe or sufficiently pervasive.

It can be difficult to point out what the courts will and will not consider as sufficiently pervasive sexual harassment. The courts have indicated that a sufficiently pervasive sexual harassment case must show a concerted pattern of harassment of a repeated, routine, or generalized nature.

It can be difficult to figure out which situations will pass the “sufficiently pervasive test” and which will not. Below are some cases in which the courts ruled that the sexual harassment was sufficiently pervasive.

Case in Point: Offensive Sexual References

In Steiner v. Showboat Operating Company, the Ninth Circuit found conduct sufficient to constitute a hostile work environment where the defendant had used the terms “dumb f-ing broad” and “f-ing c—-.” Even though the supervisor in that case was shown to be abusive to men, his abuse of women was different in that he relied on “sexual epithets, offensive, explicit references to women’s bodies and sexual conduct.”

Similarly, in Burns v. McGregor Electronic Industries, Inc., the Eighth Circuit Court stated that vulgar and offensive phrases are “widely recognized as not only improper, but as intensely degrading.”

Case in Point: Vulgar Slurs

In Katz v. Dole, a female air traffic controller was subjected to an unlawful hostile work environment where her coworker had routinely inflicted extremely vulgar and offensive sexual slurs and insults.

Case in Point: Pornographic Pictures

In Andrews v. City of Philadelphia, the defendant used derogatory and insulting terms relating to women and posted pornographic pictures in common areas at the place of employment. The Federal Third Circuit Court of Appeal found: “pervasive use of derogatory and insulting terms relating to women generally and addressed to female employees personally may serve as evidence of a hostile work environment.”

Case in Point: Nicknames and Centerfolds

In Lispett v. University of Puerto Rico, sexual harassment was found where the plaintiff and other female residents were given sex-based nicknames, Playboy centerfolds were displayed where residents ate their meals and conducted meetings, and misogynistic verbal attacks were repeatedly made.

Case in Point: Verbal Abuse and Touching

In Hall v. Gus Const. Co., Inc., the plaintiff suffered from continuous verbal abuse, requests for sex, unwanted touching at work, and urinating in the plaintiff’s water bottles and gas tank. This pattern of continuous harassment constitutes unlawful hostile work environment sexual harassment.

Case in Point: Repeated Requests for Sex

In Yates v. Avco Corp., the plaintiff’s supervisors constantly made rude comments to her and repetitively made requests for sexual favors, and this created an unlawful hostile work environment.

In Henson v. City of Dundee, an unlawful hostile work environment was found where a police chief made numerous tirades, used vulgar language, and made demeaning sexual inquiries, as well as repeatedly asking the plaintiff to have sexual relations with him.

In Bundy v. Jackson, the plaintiff’s supervisors directed sexual propositions, sexual stereotypes and vulgar language at her, such as “any man in his right mind would want to rape you.” The court found that such misconduct constitutes an unlawful hostile work environment.