Disciplinary and Harassment Investigations

status are inextricably bound up with sex . . . . because to discriminate on these grounds requires an employer to intentionally treat individual employees differently because of their sex.” A work environment is hostile if:  The conduct is so offensive that it interferes with an employee’s work performance. Effective January 1, 2019, a plaintiff no longer needs to prove his or her “tangible productivity” declined as a result of harassment; a plaintiff simply needs to show a “reasonable person” would find the harassment made it more difficult to work. 24  The conduct is so severe or pervasive that it creates an objectively hostile or abusive work environment. Effective January 1, 2019, this standard no longer applies and a single incident of harassing conduct will be sufficient to create a triable issue of fact regarding the existence of a hostile work environment. 25 And

 The alleged victim subjectively perceives the environment to be abusive. 26

Most agencies have policies that prohibit harassing conduct that does not rise to the level of unlawful harassment. Therefore, the investigation must determine whether there was a violation of agency policy.

Cases on Point: Herberg v. California Institute of Arts 27

An employee claimed she was subjected to a hostile work environment based on a piece of art displayed on the employer’s premises depicting the employee engaged in a sexual act. The piece of art was displayed for a 24-hour period. The court rejected the claim and held that liability for sexual harassment may not be imposed based on a single incident that does not involve outrageous conduct, such as an assault. 28 Fuller v. City of Oakland 29 An employee prevailed on a claim of sexual harassment against a co-employee and the employer. The employee and co-employee mutually dated for a few months. After the employee called off the relationship, the co-employee (1) threatened to kill himself, (2) forced the employee to drive off the road, (3) forcibly obtained the employee’s unlisted phone numbers, and (4) left several unsolicited telephone messages for the employee. 30 Jacobus v. Krambo Corp. 31 However, an employee did not prevail on a claim of sexual harassment against a co-employee based on mutual sexual banter. The employee and co-employee frequently engaged in sexual conversations, socialized outside of the workplace, and joked about going to a strip club together. The co-employee also shared sexually explicit materials with the employee at the employee’s request. 32

Disciplinary and Harassment Investigations ©2020 (s) Liebert Cassidy Whitmore 13