Traveling For Work with Your Boss and Sexual Harassment: A (Potential) Recipe for Disaster
All California employers should have a comprehensive policy to prevent sexual harassment. Depending on the nature of the employer’s business, such policies may need to cover more than strictly in-office conduct. If employees are required to travel as part of their official duties, the employer should take steps to preempt any potentially harassing or discriminatory conduct while managers and employees are together outside of the office.
Calif. Appeals Court Rejects Defendant’s Attempts to Blame Victim for Harassment
A recent decision by the California Fourth District Court of Appeal, Simmonds v. Gerra, illustrates what can go wrong in the absence of clear policy guidance. The defendant’s company provides instruction in the sport of squash. The employer hired the plaintiff, a woman, as an assistant instructor. During the course of her employment, the plaintiff said she was subjected to the defendant’s “inappropriate sexual behavior.”
Of importance here, the plaintiff said two weeks after she was hired, she and the defendant traveled to Miami for a work-related event. To her surprise, the plaintiff learned the defendant booked a single hotel room for the two of them. And at one point during the trip, the defendant photographed the plaintiff without her consent while she was only wearing a towel following a shower.
The plaintiff eventually resigned and sued the defendant on a number of grounds, including sexual harassment and intentional infliction of emotional distress. The case was tried before an Orange County judge sitting without a jury. The judge ultimately ruled in favor of the plaintiff and ordered the defendant to pay a total of $25,630.00 in damages.
On appeal, the defendant said there was insufficient evidence supporting the verdict. He argued that merely forcing the plaintiff to share a hotel room with him was not sexual harassment, because a “reasonable person could conclude that adults can share a hotel room for reasons unrelated to sexuality,” such as saving money. The Fourth District “flatly reject[ed]” that argument, noting that “imposing a shared hotel room on an opposite sex employee, without advance notice or consent,” is not what would one call “harmless behavior.” The appeals court said it also found the defendant’s refusal to acknowledge he did anything wrong in photographing the defendant wearing a towel “disturbing, to say the least.”
Ultimately, the Court said the trial judge was justified in finding for the plaintiff and awarding her damages for intentional infliction of emotional distress. On that latter point, the defendant rebutted that the plaintiff could have reported his alleged harassment to their “shared employer” and thus avoided the emotional consequences of his actions. The Fourth District dismissed this attempt at victim-blaming, noting there was no evidence in the record that the plaintiff “failed to take reasonable measures to avoid being subjected to his distressing overtures and commentary.”
Get Advice Regarding Sexual Harassment
If you have any questions or concerns about acts of harassment in your own workplace, you should contact a qualified California employment law attorney right away.