Harassment Ruling to Have Limited Impact on Workplaces

By Staff Report

Aug. 31, 2005

Though a recent ruling by the California Supreme Court exposes employers to a greater risk of litigation by employees alleging sexual harassment, experts say most workplaces probably have cultures and practices in place that make such a suit unlikely.

The case, brought by two female employees of the state’s Department of Corrections, centered on favoritism doled out by their boss, a male prison warden. According to court documents, he had ongoing affairs with three women who reported to him at two different facilities. The three enjoyed special treatment in the workplace as a result.

The plaintiffs claimed that their careers suffered even though they were neither involved with the warden nor subject to his whims. They still presented evidence of discrimination, such as being passed over for promotion, and showed that they feared retaliation if they complained. In ruling for them, the justices overturned two lower courts’ decisions, finding that the conditions the women endured fit a pattern of sexual harassment and violated the state’s Fair Employment and Housing Act.

Christopher Kondon, a partner in the law firm Kilpatrick & Lockhart Nicholson Graham in Los Angeles, says the ruling is “firmly rooted in real damage to real people.” But he adds that the fact pattern in this case is uncommon in the modern workplace, meaning plaintiffs would likely have to show outlandish conditions in order to prevail. Moreover, the justices excluded isolated acts, which means an employee has to demonstrate a pattern of mistreatment to make a case.

The decision could influence how companies handle workplace relationships and frame fraternization policies. The law already permits companies to ban relationships between supervisors and their reports–something UPS does, for example, largely to deter any perception of special treatment. In the event that two people in management get involved, UPS protocol is for the relationship to end or for one party leave the company.

Kondon says reaction to the case in the business community has been mild thus far. An appeal appears unlikely anyhow in part because the U.S. Supreme Court probably would not take the case. “This is a conservative court when it comes to sexual harassment in the workplace,” says Arthur Silbergeld, a partner with Proskauer Rose in Los Angeles. He explains that the justices would be almost certain to bypass hearing arguments and let stand a law that, in the court’s view, promotes a just and orderly workplace by keeping a lid on inappropriate behavior.   

Jonathan Pont


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