Harassment In Employment

Law Talk

Although we handle no employment law cases, employment law becomes very important in construction matters. We see a number of cases dealing with employment. All employers should know that the employment laws are intended to protect the employee and not the employer. This case deals with sexual harassment and retaliatory discharge. There were other issues also involved in this case, but we will not be discussing those issues as much in this article.

Pamela Mokler filed suit against her former employer, the County of Orange, and a supervisor by the name of Chris Norby. Mokler sued the County for retaliatory discharge and Norby for a hostile work environment/sexual harassment. After Mokler had overstepped her boundaries on the job, she was put on administrative leave and was then terminated after a hearing. She was also told she had a right to appeal that decision. In her lawsuit she alleged that during the course of her employment, she had three interactions with Chris Norby over a five-week period where he made derogatory comments to her.

With regards to the retaliatory discharge claim, the appellate court upheld her claim stating that the charge still stands since the County was raising some of the issues on the appeal and therefore was not timely asserted. But the damages were minimal for that claim.

Not surprisingly, regarding the sexual harassment claim, a jury determined that the county terminated Mokler in violation of the State Whistleblower statute and that Norby's harassment had created a hostile work environment in violation of the Fair Employment and Housing Act (FEHA). The appellate court disagreed in part.

It stated that some of the factors to consider in determining whether a work environment is hostile include the nature of the unwelcome acts, the frequency of the offensive encounters, the number of days the conduct occurred and the context within which the conduct occurred.

Further, in order to be actionable, the acts of harassment cannot be occasional, isolated, sporadic, or trivial.

Although Norby's actions were rude, inappropriate and offensive, the plaintiff could not prove that the harassment was "sufficiently severe or pervasive" so as to alter the conditions of employment and create an abusive work environment. These were more isolated instances of sexual harassment, and no physical threats were involved, which does not create the hostile work environment.