When it comes to conduct that could constitute legally actionable sexual harassment, a question often arises whether those acts are “pervasive” (i.e., repeated) enough to result in employer liability under the state’s Fair Employment and Housing Act (FEHA). A California appellate court’s recent opinion in Haberman v. Cengage Learning, Inc., provides an employer-friendly answer to this question.
In Haberman, the plaintiff alleged approximately 20 incidents of sexually harassing conduct against two supervisors between 2005 and 2007, 11 of which were found by the court to be sexual in nature. The court held these 11 incidents of a sexual nature were not sufficiently pervasive to rise to the level of actionable harassment because the incidents occurred over a two- to three-year period; did not involve any physical contact, threats, or explicit language; and, for the most part, constituted mild innuendo. Taken as a whole, then, the instances of sexual harassment alleged by the plaintiff were “isolated, sporadic, and often trivial” and did not “show a concerted pattern of harassment of a repeated, routine, or generalized nature.”
This holding reaffirms that the FEHA is not intended, as one court has said, to be a “civility code . . . designed to rid the workplace of vulgarity.” If the allegedly harassing behavior – no matter how inappropriate for the workplace – does not rise to the level of “severe” or “pervasive,” a plaintiff may not recover monetary damages. Nevertheless, all harassment, no matter how severe, requires an employer’s immediate attention. No employer wants to be spend hundreds of thousands of dollars in legal fees to prove that alleged harassment wasn’t legally actionable.