Supervisor's Sexual Harassment Claim Fails

A female supervisor who alleged that a subordinate subjected her to sexually harassing conduct that was severe and pervasive enough to create a hostile work environment was not entitled to a trial on her claim because while most of the conduct was "rude, inappropriate and offensive," it wasn't sexual in nature, the California Court of Appeal ruled.

In January 2011, Georgina Huskey was a supervisor of medical consultants in the California Department of Social Services' north branch office in Los Angeles. Dr. Emery Jakab was one of the consultants Huskey supervised.

According to Huskey, Jakab verbally harassed her and other women at the branch at least twice a week. This included, she said, calling women "idiots," stating "they couldn't do their job" and referring to several women at the workplace as "bitches."

As many as 10 times, Jakab asked Huskey to go to lunch, Huskey claimed. She said he kept asking, even though Huskey always turned him down.

In March 2012, Jakab made what Huskey considered an inappropriate and offensive comment to her about her hair, and attempted to touch her hair and face, while sitting at eye level with his legs spread wide apart. On at least two other occasions, she claims, Jakab came to her cubicle and spread his legs in this manner, even after she directed him not to. Huskey said she complained to the department's branch chief a few times that Jakab's behavior was sexual in nature and that it made her uncomfortable.

In February 2013, Jakab allegedly attempted to hug Huskey and hold her hand. Huskey complained to the department's equal employment opportunity office, which investigated the incidents. In February 2014, following the conclusion of the investigation, Jakab resigned after the department began termination proceedings.

On Dec. 31, 2014, Huskey retired from her job. On Feb. 3, 2015, she filed a lawsuit against the department, claiming sexual harassment in violation of the Fair Employment and Housing Act (FEHA). The department filed a motion for summary judgment, seeking to have the case dismissed before trial.

[SHRM members-only policy: Anti-harassment policy and complaint procedure]

The trial court granted the department's motion on Jan. 11, 2016, and Huskey appealed.               

Proving Hostile Work Environment Harassment

The appellate court first noted that to go forward with a sexual harassment claim in violation of FEHA, an employee must show that she was subjected to sexual advances, conduct or comments that were:

• Unwelcome.

• Because of sex.

• Sufficiently severe or pervasive to alter the conditions of her employment and create an abusive work environment.

"While FEHA prohibits harassing conduct that creates a work environment that is hostile or abusive on the basis of sex, it does not outlaw sexually coarse and vulgar language or conduct that merely offends," the court said.

The existence of a hostile work environment depends on "the totality of the circumstances," the court continued. This includes the frequency of the harassing conduct; its severity; whether it is physically threatening or humiliating, or merely offensive; and whether it unreasonably interferes with an employee's work performance.

Huskey contended that her sexual harassment claim should have been considered by a jury, but the appellate court disagreed and affirmed the trial court's dismissal of the lawsuit.

The court concluded that Jakab's acts of harassment toward Huskey fell short of a "pattern of continuous, pervasive harassment" necessary to establish a hostile working environment under FEHA. Those incidents, the court said, were isolated and sporadic, occurring over a two-year period.

Instead, the bulk of the conduct about which Huskey complained was directed at women in general. This conduct, the court said, was rude, inappropriate and offensive, but it was not sexual in nature and therefore failed to support a sexual harassment claim.

Huskey v. California Dept. of Social Services, Calif. Ct. App., No. B271837 (Aug. 22, 2017).

Professional Pointer: While repeated use of a pejorative term such as "bitch" does not, by itself, establish sexual harassment, the use of such words in the workplace must be viewed in context—and may support a sexual harassment claim if there is evidence that the term was used in a hostile manner to demean someone based on, or because of, his or her sex.

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

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