Governor Gray Davis recently signed legislation providing enhanced rights to more than 16,000 registered gay, lesbian, and domestic partners in California. The bill allows medical decisions by one partner for another who is incapacitated, allows partners to sue for wrongful death of the other, and for adoption and property inheritance rights between partners. In addition, individuals who move to relocate with a domestic partner will not lose unemployment benefits, and qualifying partners may use sick leave to care for the other. Domestic partners must register with the Secretary of State's office in order to qualify for the new benefits.
Source: Associated Press October 14, 2001
Criminal Behavior? Yes. Harassment? Maybe Not.
If someone has behaved so inappropriately at work that sexual assault charges are successfully filed against him, then clearly it is also a case of sexual harassment, right? Not necessarily so, according to a recent 9th Circuit Court decision.
Consider the case of Patricia Brooks, an emergency dispatcher with the city of San Mateo, California. One night, Ms. Brooks was working an evening shift with one other dispatcher, Steven Selvaggio. During the shift, Mr. Selvaggio approached her as she was taking a call and put his hands on her stomach, commenting on how sexy she was. Ms. Brooks told him to stop and forcefully pushed him away. In response to this, Mr. Selvaggio blocked Ms. Brooks so she could not move away, and forced his hand underneath her sweater and bra to fondle her bare breast. Ms. Brooks again resisted his advances, and as he was preparing to assault her again, another dispatcher entered the room, causing Mr. Selvaggio to cease his behavior. Ms. Brooks immediately reported the incident, and Mr. Selvaggio was placed on leave pending an investigation.
The investigation revealed that two other dispatchers had been the victims of similar treatment by Mr. Selvaggio, although neither had reported it at the time. The city's investigation concluded that Mr. Selvaggio had violated the city's sexual harassment policy, and he subsequently resigned from his job after the city initiated termination procedures against him. Mr. Selvaggio later pleaded no contest to misdemeanor sexual assault, and spent 120 days in jail.
Ms. Brooks filed a sexual harassment complaint against her employer with the EEOC related to the assault and what she perceived as retaliation when she returned to work after the incident. She was issued a right to sue letter and continued with her case in district court.
She lost. When she appealed the decision, she lost again. The courts stated, among other things, that Mr. Selvaggio's behavior toward her was not severe enough to constitute a hostile working environment. The decision depended on the fact that the misconduct was a single incident and that the perpetrator was a co-worker (albeit a senior one) and not a supervisor.
Hostile environment harassment is defined legally by its frequency, severity, and level of interference with work performance. Single incidents of misconduct may meet the test, but only if they are extremely severe. How severe? Patricia Brooks didn't even come close. The courts pointed to a successful single incident harassment claim in which the assailant slapped the victim, tore off her shirt, beat her, hit her on the head with a radio, choked her with a phone cord and ultimately forced her to have sex with him. The victim was held captive overnight, and was ultimately hospitalized for her injuries.
This decision is an indication of just how narrowly the courts interpret sexual harassment law. Was Mr. Selvaggio's behavior egregious, even criminal? Absolutely, the courts agreed; after all, he did time for it. But was it sexual harassment under their narrow definition of the law? No, and Ms. Brooks' employer (who was the defendant in this case) could not be held responsible for it.
Other recent interpretations of sexual harassment law further illustrate the specific scope courts are using in their decisions. More on that next month.
Sources: Brooks v. City of San Mateo Al-Dabbagh v. Greenpeace