The United States Federal Courts have been ruling on Discrimination and Harassment cases under the Title VII Anti-discrimination law for more than 50 years. The California Courts have been interpreting the California Fair Employment and Housing Act Anti-discrimination laws for more than 30 years. During those time periods, both sets of courts have decided many important issues. Below are a few of those important cases. Another writer might have picked others, but I picked cases whose holdings both significantly helped to shape the law and had “juicy” facts.

Generally, when a supervisor dates a subordinate the company faces no liability, unless the supervisor jilts the subordinate and the subordinate later claims that the supervisor harassed the subordinate. Another situation where harassment can take place at work is when the supervisor has several work place lovers and gives them favors that other employees do not get.

In Miller v. Department of Corrections, (2005) 36 Cal.4th 446, Miller learned that the chief deputy warden was having sex with three of Miller’s piers. Over a period of years, each one received perks, favors, promotions, coveted transfers, etc. that other employees did not get. In certain instances, the warden favored his less qualified paramours over Miller. Miller sued for discrimination and harassment. The trial court and the appellate court dismissed Miller’s claims because no harassment directly occurred to her. However, the California Supreme Court said: “. . . although an isolated instance of favoritism on the part of a supervisor toward a female employee with whom the supervisor is conducting a consensual sexual affair ordinarily would not constitute sexual harassment, when such sexual favoritism in a workplace is sufficiently widespread it may create an actionable hostile work environment . . .”. Accordingly, it ruled that Miller suffered harassment.

Harassing language, by itself, may not create a hostile work environment. For instance, when harassing language is part of a creative work environment. (Lyle v. Warner Bros. Television Productions, 38 Cal4th 264.) Lyle took a job on the cast of the hit show “Friends”. She was warned that the writers creatively used vulgar, sex based language to help them write scripts. It was not directed toward Lyle and she did not complain about it. The writers did the following: discussed “blowjobs”, described the types of women they liked to have sex with, drew pictures of naked women, simulate masturbation, described how they would have sex with female caste members, etc. Regardless, the California Supreme Court said employee Lyle had no claim for sexual harassment.

On the other hand, acts and language similar to what happened with the “Friends” writers certainly can be sexual harassment. Reeves was the only women amongst 7 employees on the sales floor of the shipping company, C.H. Robinson Worldwide, Inc. (Reeves v. C.H. Robinson Worldwide, Inc., (11th Cir. 2010) 594 F.3d 798.) The sales men swore and talked vulgarly. They constantly said things in front of Reeves like: bitch, f*** that bitch, c***, f***, and whore. They discussed the size of women’s breasts, masturbation, bestiality, etc. They described other women as whores and bitches. There was computer porn in the work place. Reeves heard and saw these things daily and complained often. The trial court dismissed Reeves’ case because it was not directed at her, but the appellate court said that it was a very harassing atmosphere and that Reeves could pursue a claim for Sexual Harassment.

When an employee refuses to go along with a boss’s sexual harassment and gets fired for it, that employee has a claim for retaliation. (Yanowitz v. L’Oreal USA, Inc., 36 Cal.4th 1028.) Yanowitz’s male boss told her to fire a female sales associate who the boss claimed was “not good looking enough”. She was to replace the associate with “somebody hot”. She refused and was harassed in retaliation for failing to fire the associate. She eventually quit and sued. The court said L’Oreal retaliated against Yanowitz.

Often sexual harassment cases come down to what evidence a court will allow the jury to hear. In Pantoja v. Anton, the trial court did not allow me too evidence, but the appellate court said it should have. (Pantoja v. Anton, (2011) 198 Cal.App.4th 87.) Me too evidence is evidence of sexual harassment that happened to victims other than the victim who filed the lawsuit. Pantoja worked for Anton. She said that he frequently called her a “bitch”, “stupid bitch” and “f****** bitch”. He flew off the handle regularly and used those swear words, and others, when he was mad. Other women said they heard him use those words, saw him get mad regularly, and were called those things too. Anton admitted that he got mad and swore, but he said that he got mad at men and women in the same way, cussed at the situation, not people, and swore around men and women alike. The trial court ruled against Pantoja, but the appellate court said that under those circumstances, the trial court should have allowed Pantoja to use the me too testimony of other female employees to support her claims.

S. Ward Heinrichs, Esq.
Employment Law Office of Ward Heinrichs
4565 Ruffner Street, Suite 207
San Diego, CA 92111
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