Allegations of Leering, One Unwanted Hug Insufficient to Establish Sexual Harassment

​An employee who claimed her supervisor frequently leered at her, once hugged her after shaking hands with male employees, and told her one time to stay off of pornography sites at work could not go forward with her claim of sexual harassment and hostile work environment, a California appeals court recently ruled.

The allegedly harassing conduct was not severe or pervasive, and there was no evidence that the supervisor's conduct interfered with the employee's work performance or altered her working conditions. Therefore, the employee would not be able to prove her harassment claim, the court said.

The employee worked for a county public defender's office in Long Beach, Calif., as a student professional worker. A student professional worker is employed part time while also attending school, and the employee worked approximately 30 hours a week. She performed clerical tasks, including answering phones, helping clients, conducting research, making copies, data entry and typing.

The employee claimed that her immediate supervisor frequently stared at her in a sexual manner. She tried to avoid him because he made her uncomfortable. On one occasion, at a work party for Administrative Staff Appreciation Day, her supervisor gave two male employees cards and shook their hands. When he handed the employee a card, he hugged her instead of shaking her hand. The employee said that the hug was unwanted and embarrassed and upset her.

About a week after the party, the supervisor came up behind the employee as she worked in her cubicle and asked her when she was going to stop accessing internet pornography sites. The employee said she was shocked and embarrassed.

According to the supervisor, he did not see pornography or anything inappropriate on the employee's computer when he made the comment. He told her to stay off of pornography sites because it was against office policy to use the internet for inappropriate reasons. He said that he told all the employees the same thing.

After the employee left her job, she filed suit against the county under the California Fair Employment and Housing Act (FEHA), alleging several claims, including sexual harassment. The county moved to have the sexual harassment claim dismissed before trial, and the court granted the motion. The employee appealed.

Hostile Work Environment

Under FEHA, an employer is prohibited from harassing an employee because of their sex or gender. To prevail on a sexual harassment claim based on a hostile work environment, an employee must show that the alleged harassment unreasonably interfered with their work performance by creating an intimidating, hostile or offensive work environment, the court said.

The alleged conduct must be severe enough or sufficiently pervasive to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees, the court continued.

The conduct must be more than annoying or merely offensive comments, and it cannot be occasional, isolated, sporadic or trivial; rather, the employee must show a concerted pattern of harassment of a repeated, routine or a generalized nature, the court explained.

Whether the harassment is sufficiently severe or pervasive to create a hostile work environment must be assessed from the perspective of a reasonable person. In addition, an employee must subjectively perceive the work environment to be hostile.

The employee's evidence consisted of two isolated incidents along with her claim that her supervisor leered at her. Taken together, the court said, this evidence was insufficient to show that the employee's workplace was permeated with discriminatory intimidation, ridicule and insult that was sufficiently severe or pervasive to alter the conditions of her employment and create an abusive working environment.

There was no evidence that the supervisor's hug was unduly prolonged, sexualized, intimidating, threatening or demeaning, or that the supervisor touched the employee on any other occasion, the court noted. Similarly, the supervisor's pornography admonition was not explicitly derogatory or threatening to the employee. FEHA is not designed to rid the workplace of vulgarity and does not outlaw language or conduct that merely offends, the court said.

Although the employee alleged that her supervisor stared at her in a sexual manner, she offered no evidence that the staring was related to her gender. The evidence did not indicate that the supervisor sought the employee out to stare at her, and there was no evidence as to the duration of the staring.

Under California law, when harassing conduct is not severe, more than a few isolated incidents must have occurred to prove a claim based on working conditions. The employee asserted that the supervisor's conduct upset her and made her uncomfortable when it occurred, but she offered no evidence that the behavior made it more difficult for her to do her job. There was no evidence, the court said, that the supervisor's conduct interfered with the employee's work performance or altered her working conditions.

The appeals court affirmed the trial court's dismissal of the claim before trial.

Robinson v. County of Los Angeles, Calif. Ct. App., No. B317521 (Nov. 8, 2023).

Joanne Deschenaux, J.D., is a freelance writer in Annapolis, Md.