Two new harassment cases buck conservative trend

Two new Courts of Appeals decisions do not fit neatly into the pattern of sexual harassment cases noted here before. Both cases find behavior to be harassing that most courts would say is not.

The first case is Weeks v. Baker & McKenzie, the famous case against a lawyer who put M&Ms in the breast pocket of his secretary. He also came towards her with his hands at breast-level in a cupping motion, grabbed her buttocks once, and once put his knee in her back and pulled back her shoulders and said about her breasts, "which one is bigger?" Most of these incidents happened on the same day.

Weeks testified that, as a result, she felt petrified, angry and confused, and found it difficult to concentrate on her work. Based on this, the court said, "The evidence thus supports the finding that Greenstein' s conduct unreasonably interfered with Weeks' s work performance and/or created an intimidating, hostile, or offensive working environment." (Note, this case was decided under California law.)

The second case decided was Gallagher v. Delaney by the Second Circuit Court of Appeals. In that case, a secretary was the object of affection by her boss. For two years, he took her to lunch numerous times and showered her with gifts, including jewelry, a teddy bear, a single pink rose and a book about angels. He frequently complimented her on her appearance and gave her "free" days off.

He never directly asked her for sex, but he frequently reminded her that he was her boss and had control over her career. In addition, after she complained about the harassment, she was given poor reviews, transferred to a less prestigious job, and ultimately terminated.

The court held that these facts might be found by "reasonable jurors" to be a violation of the sexual harassment laws.

What Does This Mean? Both of these cases have one thing in common: the employers mis-handled the harassment complaints and arguably retaliated against the women bringing the claims. In both cases, the complaints were minimized, if not ignored. In both cases, the men were not given any corrective action. Neither man knew that charges had been filed against him until there was an official government action. Neither man was ever disciplined; in fact, in neither case was a proper investigation conducted.

Although conceptually troubling, it appears that in close cases the doubts will be resolved in favor of the person bringing the harassment claim if the employer did not take appropriate steps. What this means to employers is that it is essential to treat claims of harassment in an objective and rigorous manner.

Weeks v. Baker & McKenzie, ___Cal.App.4th___, 98 C.D.O.S. 3373 (CA 1, May 4, 1998);

Gallagher v. Delaney, ___F3d___, 1998 U.S. App. Lexis 5056 (2d Cir., March 19, 1998)

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.