It’s a fact of life that educating employees and supervisors about sexual harassment and having a strong policy are not always enough to prevent misconduct. But a rapid response can help keep a single incident from mushrooming into a successful harassment lawsuit, as one employer recently learned.
Employer Takes Immediate Action
One evening while Patricia Brooks, a 911 dispatcher for the city of San Mateo, was on duty with co-worker Steven Selvaggio, he allegedly placed his hands on her stomach and called her sexy. She told him to stop and pushed him away, but a few minutes later he came up behind her, put his hand under her sweater and bra, and fondled her breast. Brooks immediately reported the incident, and the next day the city placed Selvaggio on leave pending an investigation. He resigned after termination proceedings were initiated against him. Selvaggio eventually spent 120 days in jail on misdemeanor assault charges stemming from Brooks’ complaint.
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Employee Quits
Brooks had trouble recovering from the incident and didn’t work for six months. She said that when she returned, co-workers ostracized her, she had difficulty getting her preferred work shift and vacation dates, and she received a poor performance evaluation. She eventually resigned and sued the city for sexual harassment and retaliation.
No Hostile Work Environment
The Ninth Circuit Court of Appeal threw out her lawsuit. The court acknowledged that a single instance of harassment can establish a hostile work environment if it is extremely severe. But Selvaggio’s alleged conduct, although highly offensive, didn’t go that far. The court pointed out that Brooks wasn’t physically harmed. And although she needed psychological help after the incident, a “reasonable woman” in that situation wouldn’t have been impaired in doing her job over the long term, considering that the incident lasted only a few minutes and the city took immediate action to remove Selvaggio from the workplace.
Retaliation Claim Tossed Out
The court also rejected Brooks’ retaliation claim because she wasn’t subjected to any adverse employment action. The court said that ostracism by co-workers doesn’t amount to retaliation since an employer cannot force employees to socialize with each other. Finally, the alleged negative performance evaluation wasn’t final—and thus wasn’t an adverse action—because Brooks appealed the evaluation and quit before a decision was reached.