A FEHA sexual harassment claim filed against Yolo County Sheriff Ed Prieto was revived by the Ninth Circuit in an unpublished decision after the federal district court granted defendant’s motion for summary judgment.
Lessons from the Ninth Circuit:
- There is no rule that hugs and kisses on the cheek are not outside the realm of common workplace behavior.
- Rules are not created from non-binding district court decisions, especially if the decisions are old – such as 14 years old or 20 years old.
- Old rules likely do not reflect changing contemporary standards of socially acceptable conduct in the workplace.
- The legal standard for sexual harassment cases is “severe or pervasive” not “severe and pervasive.” (My editorial comment: A lot of defense attorneys still don’t understand that.)
- There is no mathematically precise test to determine if a workplace is hostile, such as a few hugs a few times a year does not equal sexual harassment.
I’m always happy, well at least I’m almost always happy, when an appeals court reverses a summary judgment in a sexual harassment case because there are usually fact issues and juries should determine what constitutes sexual harassment. The court’s statement that old rules do not reflect changing contemporary standards of socially acceptable conduct in the workplace pretty much sums that up.
I’m gonna remember that line the next time I’m confronted with an MSJ on a sexual harassment case.
UPDATE 02/27/2017: See my post here which addresses this case further since the Ninth Circuit designated it as a published opinion.