(Employer's failure to prevent is actionable)
COLE H worked as a truck driver for Beverly Fabrics for eight years. During the last 5 years of his employment, he experienced bullying and harassment by a coworker, Dan Rangle. Rangle referred to himself as “Big Swingin' Dan.” Rangle's inappropriate comments escalated when he spread gossip among other workers that Cole H was bringing male prostitutes into his work truck. Cole H, who is married with four children, was disgusted by the comments.
When Cole H reported Rangle's behavior to supervisors, he was told there was no way to change Rangle, and his complaint remained unresolved. Meanwhile, Rangle's misconduct worsened. Rangle started sending sexual photos by text to Cole H's work phone, and did not comply when Cole H told him to stop. Rangle also told coworkers that Cole H was gay. While continuing the offensive comments, Rangle ramped up the harassment by inappropriately touching Cole H. Rangle put Cole H in a head lock while acting as if he was going to kiss him. Rangle brushed the back of his hands against Cole H's buttocks. Rangle twice rubbed his genitals, through his pants, on Cole H's arm.
Fed up, Cole H bypassed his supervisors and reported Rangle's misconduct to upper management. Five years after first reporting to his supervisors, Rangle was finally terminated. Cole H was then reprimanded by his supervisor for going over his head to complain. Afterwards, his work assignments were changed which made it impossible for him to do his job. He eventually resigned.
Because of the harassment, Cole H developed PTSD, major depression and an adjustment disorder, and was deemed by his doctor unable to work. He sued the employer for sexual harassment, gender discrimination, retaliation and failure to prevent harassment, discrimination and retaliation.
At trial, the employer's Vice President of Operations and Risk Management, to whom Cole H reported the harassment, admitted that he did not investigate Cole H's complaint, even though he investigated every other complaint of male-female or female-male sexual harassment. Cole H testified that two months after the complaint, the VP came to him and told him the company was glad this didn't happen to a woman.
Harassment created by a “hostile environment” arises where unwelcome sexual conduct unreasonably interferes with an employee's job performance or creates an intimidating, or hostile working environment, even if it does not lead to economic job benefits. Here, the coworker's unwelcome sexual comments and inappropriate touching of Cole H despite requests to stop created a hostile work environment for Cole H (and others who witnessed this interaction).
Under California law sexually harassing conduct need not be motivated by sexual desire and sexual harassment does not require proof of sexual desire towards the victim. The sexually harassing comments or conduct may be motivated by anger or rage and sex is used as a weapon to create a hostile work environment.
Because the employer knew of the harassing conduct by Cole H's coworker and failed to stop it, the employer is liable for harassment by its employee. Such employees may be entitled to wages and benefits lost due to wrongful termination; future loss of earnings; emotional distress damages for the mental pain and suffering caused by the employer's illegal discrimination;