Sexual Harassment Case Law California
In Hughes v. Pair (2009) 46 Cal.4th 1035, 1040, defendant made several sexually suggestive comments during a telephone conversation with plaintiff. Later that night at a museum reception, defendant told plaintiff, "'I'll get you on your knees eventually. I'm going to fuck you one way or another.'" (Ibid.)
The Supreme Court held the conduct was not severe or pervasive. "To be pervasive, the sexually harassing conduct must consist of 'more than a few isolated incidents.'" (Id. at p. 1048.)
And, although "an isolated incident of harassing conduct may qualify as 'severe' when it consists of 'a physical assault or the threat thereof,' . . . defendant's remark, which was made in the presence of other people attending a private showing at a museum, would not plausibly be construed by a reasonable trier of fact as a threat to commit a sexual assault on plaintiff. " (Id. at p. 1049.)
In Mokler v. County of Orange (2007) 157 Cal.App.4th 121, 126-127, the Court concluded a county employee's sexual harassment claim against a county supervisor failed because the employee's allegations of misconduct did not establish a hostile work environment as a matter of law. "Norby's harassment of Mokler occurred on three occasions over a five-week period, and involved no physical threats. The first occurred on January 29, 2003, at an offsite budget meeting.
During the lunch break, Mokler approached Norby and introduced herself. Norby asked about her marital status and called her an 'aging nun' when he learned she was not married. The second occurred on February 5, 2003, at a hotel celebration. There, Norby took Mokler by the arm, pulled her to his body, and asked, 'Did you come here to lobby me?' When she answered no, Norby responded: 'Why not? These women are lobbying me.' He told Mokler she had a nice suit and nice legs, and looked up and down at her. The third occurred on March 3, 2003, at Norby's office. Norby told Mokler she looked nice and put his arm around her. He then asked Mokler where she lived, demanding to know her exact address. Norby again put his arm around Mokler and, as he did so, his arm rubbed against her breast. When Mokler tried discussing the services provided by her department, Norby interrupted, stating: 'Why . . . do you have to do something special for Mexicans?'" (Id. at p. 144.)
The Court concluded in Mokler, supra, 157 Cal.App.4th at pages 145-146, that "these acts of harassment fall short of establishing 'a pattern of continuous, pervasive harassment' , necessary to show a hostile working environment under FEHA.