Supervisor Sexual Harassment
Sexual harassment is about subjugation.
In my experience, a vast number of the sexual harassers my clients have
sued do not expect to obtain sexual gratification. The harassment is
about control, abuse, and abuse of power. The Appellate Court failed to
comprehend how such utterly offensive comments could constitute an abuse
of power through sex.
The court also decided that sexual
taunting was commonplace at this particular workplace. The employee was
an iron worker tying rebar at Conco sites. Apparently, the court has
created a new type of immunity to vulgar workplaces of any industry. The
court also decided none of this conduct caused the employee severe
emotional distress despite the fact he cried as he reported this to the
safety manager.
It would seem that there are other ways
to criticize an employee, and probably create a worker’s compensation
case, that do not so closely relate to male on male sexual interests.
Had the supervisor not been interested in homosexual practices, or how
good a man looked in his pants, words would not have flowed from his
mouth with such ease about what might be stimulating.
Other Kinds of Sexual Harassment
Now every time there is same sex
harassment, the lawyer representing the employee will have to ask
whether the harasser is gay. The harasser’s claims about whether he is
gay will then be subject to scrutiny. Consider this opinion a judicial
assault on any gay people who are not openly gay and proud of their
sexuality. Other disingenuous reasons for the
appellate court’s decision may also be that all of the harassment
happened in one day, there was an apology, and the ride home. These
mitigating circumstances should not supersede such awful behavior.This is an example of a court being
restrictive. The court decided the matter should be sent back to the
trial court on the basis that there might have been retaliation for
complaining about sexual harassment even though none of this amounted to
sexual harassment. This logic does not make a tremendous amount of
sense other than the court minimizing and subtracting from the panoply
of laws this conduct should violate, and potentially holding the
harasser individually responsible through laws on sexual harassment and
the intentional infliction of emotional distress.It is also interesting to note that this
case started with Judge M. True III’s grant of a summary judgment
motion. I have never personally had any experience with this judge, but
do note that a google search of his name has more negative content than I
recall seeing for any other trial judge. However, prior to becoming a
judge this man represented employees. Odd. Justice Bruiniers, who wrote the
opinion, was apparently a police officer during the “turbulent years” at
Berkeley (1967-1973). He also served in the Marines. In private
practice, he represented businesses.
If any luck, the California Supreme
Court will take review of this abomination of a judicial opinion.
Alternatively, the legislature could take action, but with at least one
of them making negative jokes about Italian Americans one must wonder
whether anti-discrimination is a thing of the past. [1] Apparently this
was also a funny joke to the panel of the three appellate justices who
concurred in this opinion because they didn’t see there being a triable
issue of fact for the jury whether this might be sexual harassment, or
the intentional infliction of emotional distress.
Contact us, or call 1-877-525-0700 to consult with a sexual harassment lawyer.
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