Sexual harassment case law is evolving rapidly. In the first lawsuit of its kind in California, a Court of Appeal recently decided that a male employee’s staring at a female co-worker could amount to gender-based harassment. We’ll tell you how the case came about.
Woman Receives Unwanted Attention
Michelle Birschtein worked on an assembly line at New United Motor Manufacturing’s Fremont plant. George Bonillia, a forklift driver at the plant, asked Birschtein for a date several times, and each time she refused. Bonillia also made sexually suggestive comments to Birschtein concerning his fantasies about her and physical acts he would have liked to perform on her. Birschtein claimed that these comments upset her and she asked Bonillia to leave her alone.
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Employee Complains To Supervisor
Birschtein complained to her foreman, who spoke to Bonillia’s foreman about the incidents. Bonillia never spoke to her again. Instead, according to Birschtein, Bonillia began a staring campaign. Over the next six months, Bonillia drove to Birschtein’s work-station five to ten times a day while delivering parts. Each time, Birschtein said, he stared directly at her for at least several seconds as he drove by. At times Bonillia parked his forklift near her work-station and sat for five to ten minutes just staring at her.
When Birschtein again complained to management, Bonillia’s staring lessened somewhat. Bonillia no longer stopped his forklift but still stared at Birschtein as he drove past. As in all of the staring incidents, Bonillia never looked at her in a sexually suggestive way although on one occasion, he drove by with his hand cupped on his crotch, Birschtein said.
New United investigated Birchstein’s complaints but concluded that Bonillia’s conduct didn’t warrant any disciplinary action.
Employee Sues For Harassment
Birschtein sued New United for sexual harassment. The automaker countered that Bonillia’s conduct did not constitute harassment and that even if it did, the behavior wasn’t severe or pervasive harassment based on Birschtein’s gender. The trial court agreed and dismissed Birschtein’s case.
Court Orders Trial
The Court of Appeal sent the case back for trial. The court noted that to bring a lawsuit for sexual harassment it is not necessary to show that sexual advances were made or to show any incident with sexual overtones. The court said that a jury could find Bonillia’s daily acts of staring to be threatening and also retaliatory because they were directly related to his previous sexual harassment of Birschtein when he asked her out for dates and recounted his sexual fantasies.
The court also rejected the employer’s argument that Birschtein filed her case too late—more than one year after Bonillia last spoke to her. The court said that the staring was sufficiently related to earlier events so as to constitute a continuing course of unlawful conduct that may extend the time for filing suit.
Guidelines To Follow
It is essential to take all harassment complaints seriously and to conduct a thorough investigation and take prompt corrective action as warranted. Remember that sexual harassment does not necessarily have to involve sexual overtures. Consider the surrounding circumstances, including the parties’ past history. Don’t allow retaliation against the employee who lodged the complaint, even if the charge proves unfounded. Monitor the situation and follow up with the complaining employee to ensure that there are no ongoing problems. Document your reasons for all action you do or don’t take.