Privacy, Business and Law

Patricia Brooks, a 911 telephone dispatcher, was working the evening shift with her coworker Steven Selvaggio. During the evening, Selvaggio approached Brooks, placed his hand on her stomach, and commented about its softness and sexiness. Brooks told him to stop touching her and forcefully pushed him away.

Apparently not taking the hint, Selvaggio boxed her in, forced his hand underneath her sweater, and fondled her bare breast. Brooks removed his hand and told him he had “crossed the line.” After Selvaggio took his break, Brooks immediately reported the incident. The following day, the city placed Selvaggio on administrative leave pending an investigation. During the investigation, it came to light that Selvaggio had previously made improper advances to other female coworkers, subjecting them to similar treatment. However, none of the earlier victims reported the misconduct. Selvaggio was promptly fired.

Brooks sued for sexual harassment and retaliatory discrimination in violation of Title VII and FEHA. The district court held, in a decision as surprising as the favorable ruling in Jones v. Clinton, that Selvaggio’s conduct was not severe enough to create a hostile work environment. Brooks, of course, appealed.

The Ninth Circuit surprised Brooks again by holding that Brooks had not shown that her workplace atmosphere was so discriminatory and abusive that it unreasonably interfered with her job performance.

Because Brooks alleged that the incident required her to seek psychological help and prevented her from successfully returning to work, the court conceded that Brooks had alleged sufficient facts to establish that she had herself been offended. However, the court said Brooks failed to prove that a reasonable woman in Brooks’s position would also have found the conduct seriously offensive.

Like the court in the more famous Jones v. Clinton case, the court struggled with the question of whether a single incident of harassment is ever enough. The court said that a single instance of sexual harassment might, nevertheless, be sufficient to establish a hostile work environment. However, as we have previously held, ‘the required showing of severity or seriousness of the harassing conduct varies inversely with the pervasiveness or frequency of the conduct.’ If a single incident can ever suffice to support a hostile work environment claim, the incident must be extremely severe.

To illustrate what it meant by extremely severe, the court contrasted the case before it with the extreme facts of another case where the assailant slapped the plaintiff, tore off her shirt, beat her, hit her on the head with a radio, choked her with a phone cord, raped her, and held her captive overnight. The court stated that while the brief encounter with Selvaggio was highly offensive, it was nothing like the ordeal suffered by the plaintiff in Al-Dabbagh v. Greenpeace, 873 F. Supp. 1105 (N.D. Ill. 1994).

While this court held that a single incident of a hand up a female’s shirt was not severe and pervasive enough to establish sexual harassment, a different result might (and very likely would) occur in another jurisdiction or before another judge or jury.