New ERA Article April, 2002

Can Staring Constitute Sexual Harassment?

               In a recent case arising out of Fremont, California, 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.”

               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 the “Courts have recognized two forms of sex-based workplace harassment, quid pro quo and 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.”

               The Court of Appeal determined that there were sufficient factual allegations to permit the matter to proceed to trial.

               The moral of the story? An admiring glance is not likely to be perceived as harassment; however, a lengthy gaze combined with sexually explicit gestures and commentary may invite the offender to explain his actions before a jury!


[This column is intended to provide general information only  and
is  not intended to provide specific legal advice; if you have  a
specific  question  regarding the  law,  you  should  contact  an
attorney  of your choice.  Suggestions for topics to be discussed
in this column are welcome.]


Reprinted from New Era Magazine
Myles M. Mattenson © 2002

	Myles M. Mattenson ATTORNEY AT LAW 5550 Topanga Canyon Blvd. Suite 200 Woodland Hills, California 91367 Telephone (818) 313-9060 Facsimile (818) 313-9260 *Email:* MMM@MattensonLaw.com *Web:* http://www.MattensonLaw.com	*Can staring* Constitute Sexual Harassment?**
Myles M. Mattenson engages in a general civil and trial practice including litigation and transactional services relating to the coin laundry and dry cleaning industries, franchising, business, purchase and sale of real estate, easements, landlord-tenant, partnership, corporate, insurance bad faith, personal injury, and probate legal matters. In providing services to the coin laundry and dry cleaning industries, Mr. Mattenson has represented equipment distributors, coin laundry and dry cleaning business owners confronted with landlord-tenant issues, lease negotiations, sale documentation including agreements, escrow instructions, and security instruments, as well as fraud or misrepresentation controversies between buyers and sellers of such businesses. Mr. Mattenson serves as an Arbitrator for the Los Angeles County Superior Court. He is also past chair of the Law Office Management Section of the Los Angeles County Bar Association. Mr. Mattenson received his Bachelor of Science degree (Accounting) in 1964 and his Juris Doctorate degree from Loyola University School of Law in 1967. Bi-monthly articles by Mr. Mattenson on legal matters of interest to the business community appear in alternate months in The Journal, a leading coin laundry industry publication of the Coin Laundry Association, and Fabricare, a leading dry cleaning industry publication of the International Fabricare Institute. During the period of May 1995 through September 2002, Mr. Mattenson contributed similar articles to New Era Magazine, a coin laundry and dry cleaning industry publication which ceased publication with the September 2002 issue. This website contains copies of Mr. Mattenson's New Era Magazine articles which can be retrieved through a subject or chronological index. The website also contains copies of Mr. Mattenson's Journal and Fabricare articles, which can be retrieved through a chronological index. In addition to Mr. Mattenson's trial practice, he has successfully prosecuted and defended appeals on behalf of his clients in various areas of the law. Some of these appellate decisions are contained within his website.