Tuesday, September 17, 2013

+Sexual Harassment as Abuse of Authority

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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