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California Court Finds That “Staring” at a Fellow Employee Can Constitute Actionable Sexual Harassment

Volume 1, Issue 4
Winter 2001

In a case under that state's anti-discrimination laws, a California appellate court found that a male's "staring" at a female employee - "gaz[ing] fixedly . . . with eyes wide open" - could constitute sexual harassment. During 1995, a male co-worker asked the plaintiff for a date three or four times, which she declined; and made several inappropriate verbal comments including a fantasy about bathing her, declining her requests to leave her alone. After she complained to management, the male stopped speaking to her; that harassment stopped. He then began to "stare" at her, 5 of more times per day, "for several seconds" each time, as he drove by her fixed work location on his forklift. He then began to stare at her 5-10 minutes at a time, sometimes "grabbing himself". Again she complained, and he limited the staring, but would still stare "at least probably 5-10 seconds in a hurt way". This behavior was still ongoing during 1997. The employer again investigated, but did not take disciplinary action because they did not "feel [the male coworker's] actions warranted it". The appellate court found that such conduct could be sexual harassment, and that the plaintiff was entitled to a trial at which she could try to prove both gender-based harassment and retaliation for her complaints. Moreover, the court found that the entire course of conduct - from 1995 forward - could be litigated even though the overt sexual behavior took place in 1995, outside the relevant statute of limitations, under the "continuing violation doctrine". This decision points up the importance of reviewing the overall circumstances of the conduct alleged to constitute harassment, rather than focusing upon simply whether the harassment was explicitly sexual or gender-based. Employers are well-advised to focus upon the effect upon the victim, rather than to try to "box in" the behavior to a particular actionable type of harassment such as sexual.

Birschtein v. New United Motor Manufacturing, Inc., No. A090680, California Court of Appeals, First District, Division 4, __ Cal.Rptr.2d ___, 2001 WL 1187120 (October 9, 2001).

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