Indirect Sexual Harassment

An employee may have a claim for sexual harassment even when sexually harassing conduct permeates the work environment of the employee, even if such conduct is not directed at the employee if: (1) it occurs in the employee's presence; or, (2) is directed at the employee but does not occur in his/her presence. (See e.g., Beyda v. City of Los Angeles (1998) 65 Cal.App.4th 511, 518; Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 611; Kortan v. State of California (Central Dist. Cal 1998) 5 F.Supp.2d 843, 850.)

Some Recent Changes in Misc California Law.

1. Employers with 25 of more employees must give "qualified employees" as many as 10days off (unpaid) when their spouse is on leave from military deployment. Effective October 9, 2007.

2. The California minimum wage increased from $7.50 to $8. Effective January 1, 2008.

3. California drivers cannot use cell phones while driving a motor vehicle unless the driver is using a hands-free device. Effective July 1, 2008.

Severe and Pervasive Harassment

What constitutes severe or pervasive harassment that alters working conditions and creates an abusive workplace environment? In California a victim of such harassment must satisfy both an objective and a subjective standard. (See, e.g. Harris v. Forklift Sys. (1993) 510 US 17, 126; Beyda v. City of Los Angeles (1998) 65 Cal.App.4th 511, 518; Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 609.)

Objective Standard: Under the objective standard, the victim must prove that a reasonable person in the victim's position would have considered the conduct severe or pervasive. For example, if the victim of the harassment is a woman, a reasonable woman standard is used, whereas, if the victim is a man, a reasonable man standard is employed. Race, sexual orientation, age, and physical and/or mental disability of the victim may also be considered. (See, e.g., Kelly-Zurian v. Wohl Shoe Co. (1994) 22 Cal.App.4th 397.)

Subjective Standard: For the subjective standard, the victim must show that he/she actually felt that the harassment was sufficiently severe or pervasive as to interfere with the work environment.

Totality of the Circumstances: The totality of the circumstances must be considered by the finder of fact (i.e., usually the jury) in determining whether the conduct was severe and pervasive enough to constitute hostile environment harassment. (See, Miller v Department of Corrections (2005) 36 Cal.4th 446, 462; Accardi v Superior Court (1993) 17 Cal.App.4th 341.) Among other things, these considerations may include: (1) frequency of the conduct; (2) severity of the conduct; (3) whether the conduct was physically threatening or humiliating or was merely an offensive utterance; and, (4) whether the conduct unreasonably interfered with the victim's work performance, although the victim is not required to prove that he/she could not perform their job. (Herberg v California Institute of the Arts (2002) 101 Cal.App.4th 142; Etter v Veriflo Corp. (1998) 67 Cal.App.4th 457, 466; Beyda v City of Los Angeles (1998) 65 Cal.App.4th 511, 517.)

Free PDF Converter

In the last blog posting discussing preservation of evidence we discovered File123.com. Another useful use for file123.com which is also a good way to protect documents, contract/agreement versions, and so forth is the free PDF conversion feature. Simply upload a file into File123 such as a contract, a spreadsheet, or a presentation. Once it's uploaded click on the file link and it will open in a PDF viewer within File123. From the viewer click on the save disk icon on the upper left of the viewer and your file can be saved as a PDF.

Preserve Documents

Preservation of documents and evidence is key to any legal dispute. I recommend using http://www.file123.com/ to store important documents. It allows you to store digital files such as computer files and it allows you to store paper documents. This is very important. The free account provides you with 1 gigabyte of space which should be plenty of room to store important documents, photos, emails, and the like.

Hostile Work Environment Sexual Harassment

Under State and Federal law hostile work environment sexual harassment requires showing by the victim that he/she was subjected to unwelcome conduct that was based on sex and was sufficiently severe or pervasive to alter the work environment and create an abusive working environment. The victim must establish that the unwelcome conduct based on sex unreasonably interfered with his/her job performance or created an intimidating, hostile, or offensive working environment.

Emotional Distress Torts to Know

Elements needed for two independent torts for emotional distress:

I. NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

• Defendant engaged in negligent conduct (to be discussed in greater detail in a later post);
• Plaintiff suffered emotional distress (to be discussed in greater detail in a later post); AND
• Defendant's negligent conduct was a cause of the serious emotional distress.

II. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

• Outrageous conduct on the part of the Defendant;
• Defendant intended to cause emotional distress, or, Defendant acted in reckless disregard of the probability of causing emotional distress;
• Plaintiff suffered severe or extreme emotional distress; AND
• Defendant's conduct was the actual and and proximate cause of the emotional distress (see, Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 497-498.)

Actual and Proximate will be explored in later posts.