Statutes governing the employment relationship abound! Are you familiar with the ADA? ADEA? COBRA? FLSA? LMRA? OSHA? There is no shortage of acronyms!1 OSHA: Occupational Safety and Health Act Cases dealing with every aspect of the employment relationship flood the court!
In a recent California case, the Court of Appeal was required to consider whether staring at a fellow employee under the California Fair Employment & Housing Act constituted sexual harassment for which an action could be prosecuted. What constitutes staring? As the court pointed out, the Oxford English Dictionary defines the term as follows: “to gaze fixedly...with eyes wide open.”
The plaintiff in this action was a female who worked on an assembly line at an automotive manufacturing plant. Her position required her to be stationed at a fixed point on the assembly line. Parts were delivered to the assembly line by motorized forklifts at various times during the day. One of these forklifts was driven by a male fellow employee.
According to a declaration filed by the plaintiff, cited by the Court:
“He asked her for a date three or four times; each time, she declined the invitation, telling [him] she did not want to go out with him. It was during the same time, according to plaintiff, that [the man] approached her at her job site and told her he wanted to ‘eat her.’ Upset by the remark, plaintiff asked [the man] what he meant. ‘I want to eat you all over,’ he answered. Shocked and frightened by these comments, plaintiff testified that she yelled at [the man] to leave. He continued to sit on his forklift for a while before departing.”
1ADA: American with Disabilities Act
ADEA: Age Discrimination in Employmetn Act
COBRA: Consolidated Omnibus Budget Reconciliation Act
FLSA: Fair Labor Standards Act
LMRA: Labor Management Relations Act
The court also reports that the plaintiff testified at her deposition that
“Two or three days after this incident ... [the man] again approached her at the work site and told her he was having fantasies about her. These he went on to describe to plaintiff as putting her in a bathtub surrounded by candles and bathing her. ‘As he described his fantasy to me,’ plaintiff’s declaration continued, ‘he would take me out of the tub, dry me off and carry me to his room with a bed covered with rose petals.’”
After these incidents were reported to management, the man ceased speaking with the plaintiff but “began a campaign of staring at her.” According to the plaintiff, the man would drive by slowly and stare while he was driving by, or sometimes simply sit 5 to 10 minutes at a time, simply staring at her. According to the plaintiff, the man “grabbed his genitals while riding his forklift slowly by my workstation and staring directly at me.”
Eventually, dissatisfied with the employer’s control of the situation, she sued both the employee and the employer for failing to take adequate action to prevent such behavior.
In reviewing the matter, the Court of Appeal observed that there are essentially two forms of sex-based workplace harassment: (1) Quid pro quo; and (2) hostile or abusive environment.
Quid pro quo generally involves demands for sexual favors in return for advancement or other benefits in the workplace.
Sex-based hostile or abusive environmental claims arise when “the workplace is permeated with ‘discriminatory intimidation, ridicule, and insult’ ... that is ‘sufficiently severe or pervasive to alter the conditions of the victim’s employment.’”
Was the defendant’s conduct pervasive harassment in the workplace or, as he argued, merely “isolated offensive acts that, as an irritant of collective life, go without legal redress?” In this case, the Court of Appeal determined that there were sufficient factual allegations to permit the matter to proceed to trial.
Another question which frequently arises in the area of employment law is whether an employer can approach an employee of a competitor with an offer of employment without fear of being sued.
If the employee is subject to an employment agreement for a term of months or years, an employer making such an approach might be liable in tort for intentionally interfering with the performance of the contact. Most employees, however, are “at will” employees and consequently may terminate, or be terminated, at will.
Approaching an at-will employee with an offer of employment thus would not give rise to a cause of action in favor of the employer suffering the employee’s departure.
It has been held, however, that this freedom from liability is not retained if the employer making the offer engages in “unlawful and unethical conduct in mounting a campaign to deliberately disrupt [the other employer’s] business.”
An illustration of such a campaign was reported recently in California in a case dealing, sadly, with attorneys.
Two attorneys abruptly resigned their positions with a firm without notice, leaving no status reports, list of pending matters, or deadlines regarding cases in progress. After their resignations, they proceeded to offer positions to at-will employees of the firm.
The court determined that the departing attorneys’ “unlawful and unethical actions were designed in part to interfere with and disrupt [their employer’s] relationships with their key at-will employees.”
The court continues: “In short [the departing attorneys] did not simply extend job offers to . . . at-will employees. Rather, [the departing attorneys] purposely engaged in unlawful acts to cripple [their former employer’s] business operations and caused . . . personnel to terminate their at-will employment contracts. Damages in this case were awarded against the departing attorneys.
The moral of the story? Be careful how you deliver an admiring glance! And entering the profession of law does not make one above the law!