How to Avoid Summary Judgment in Sexual Harassment Cases
The California Supreme Court has consistently supported summary judgment against plaintiffs in sexual harassment cases where the plaintiff has not made out a case that is sufficient under the legal definitions of “severe” or “pervasive”. The California Supreme Court says “severe” means an offensive touching involving physical violence or a threat thereof. For sexual harassment to qualify as “pervasive,” there must be repeated conduct over a period of time that alters the conditions of employment and creates a work environment that qualifies as hostile or abusive to employees because of their sex.
A separate theory for liability for sexual harassment is quid pro quo harassment, where a term of employment is conditioned upon submission to unwelcome sexual advances.
The cases reveal that plaintiffs typically have the most difficulty overcoming summary judgment when their claims are based on pervasive sexual harassment. In contrast, a plaintiff who claims quid pro quo harassment simply has to declare under penalty of perjury that, for example, a supervisor made unwelcome demands for sexual favors as a condition of employment or continuing employment and/or as a condition of avoiding some type of adverse employment action.
Plaintiffs sometimes have difficulty in overcoming summary judgment based on a claim of “severe” harassment based on a single event. As noted above, the plaintiff must declare that there was physical violence or a threat thereof based on sex. Successful allegations are usually supported by declarations that there was either unwanted sexual contact or unwanted groping of a sexual part.
The challenge is greater for a plaintiff who alleges a threat of physical violence or offensive touching to a sexual part, because to be actionable, the objectionable behavior must be both objectively and subjectively offensive, which means that not only must the plaintiff perceive the threat as one of physical violence or sexual violation, but also a reasonable person, considering all the circumstances, would agree with the plaintiff’s perception of the threat.
For more information about Sexual Harassment Law in California, please visit our website at http://www.sexualharasslaw.com/
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