A state appellate court in California recently reversed a $1.4 million jury verdict in favor of an employee who claimed that she and others were spanked during company sales meetings. According to the California Court of Appeal, since the jury was not instructed that to prevail the employee had to show that the harassment occurred because she was female, the verdict could not stand. Orlando v. Alarm One, Inc., No. F050759, F051470, California Court of Appeal, Fifth Appellate District (January 14, 2008).
Factual Background
Janet Orlando worked in Alarm One’s Fresno office as a field supervisor. Before sales teams went out each morning, the field supervisor led a meeting to motivate the salespeople which involved yelling, chanting, cheering and a general pep rally atmosphere. At other Alarm One offices, these meetings involved singing in front of the group, pies in the face, eating baby food, wearing diapers, and spanking employees with Alarm One or competitor’s signs. The Fresno office adopted some of these techniques, including the spanking.
Orlando was spanked a few times during these meeting. On January 14, 2004, the last day on which she was spanked, Orlando claimed that she was injured by the conduct and was denied medical care. Another employee complained that she too was injured as a result of the spanking, and shortly thereafter the office stopped this practice at the morning meetings.
Orlando sued Alarm One for sexual harassment, assault, battery, sexual battery, and intentional infliction of emotional distress. The jury found in Orlando’s favor on her sexual harassment and sexual battery claims and awarded her $500,000 in compensatory damages and $1 million in punitive damages. The court later reduced the compensatory damages award by $10,000 (which represented the jury’s award for lost wages). Alarm One then appealed this decision to the California Court of Appeal.
Legal Analysis
To prevail on her hostile work environment sexual harassment claim, the court ruled, Orlando must demonstrate that the misconduct was severe enough or sufficiently pervasive to alter the terms and conditions of her employment and create a work environment that qualifies as hostile or abusive to employees because of their sex. However, the court noted that the jury was not told that Orlando must show that the harassment was based on sex. That is, they were not told that to prevail Orlando was required to show that she was exposed to a hostile work environment because she is a woman.
Orlando argued that the jury instruction was correct because “sexually harassing conduct” means the same as “harassment because of sex.” The court disagreed. According to the California Court of Appeal, to prevail on her claim Orlando was required to show that the harassment was because of her gender and not merely “harassment tinged with sexual connotations.”
Noting that erroneous instructions are grounds for reversal if they likely affected the verdict, the court turned to the impact of the instruction. According to the court, there was evidence that the spankings were not based on sex because both men and women were spanked for the same reasons (including tardiness and losing sales competitions). Orlando argued, however, that men shouted derogatory comments only when women were spanked. Furthermore, she argued that she was subject to gender-specific derogatory name-calling on other occasions.
Since there was conflicting evidence on whether Orlando was subjected to harassment because she was female, and since the jury was not instructed that the sexual harassment must be because of Orlando’s gender, the court concluded that the jury may have been misled. The court stressed that the “because of . . . sex” element is essential to a sexual harassment claim under the Fair Employment and Housing Act, and the absence of this information from the instructions may have prejudicially affected the verdict. Thus, the court reversed the judgment and sent the case back to the Superior Court.
Practical Impact
According to Margaret Gillespie, a shareholder in Ogletree Deakins’ Los Angeles office: “This case confirms that sexual harassment is harassment provoked by the plaintiff’s gender, not sexual conduct that is directed at both men and women. Nevertheless, employers should think twice before sanctioning the type of ‘motivational activities’ used here, as such behavior creates the potential for exactly the type of lawsuit filed by the plaintiff in this case.”
Note: This article was published in the January 31, 2008 issue of the California eAuthority.
