The High Bar For Sexual Harassment Claims

Owing to several decisions by the United States Supreme Court, the law on sexual harassment has constricted greatly in the last few years. The new difficult standard was illustrated in a recent case involving the Los Angeles County Sheriff’s Department.

During the process of her application to be a deputy sheriff, Catherine Logerot was interviewed by Deputy Sheriff Joseph Morien. Logerot alleged that during the interview, Morien asked her harassing and discriminatory questions based on her gender, questions that had no relationship to the position for which she was applying. They were: “Are you aggressive in the bedroom?”; “Have you had sex with a minor?”; and “How old were you when you first had sex?” Logerot also alleged that Morien asked her questions about whether she watched pornographic movies, and attempted to discourage her from seeking to be hired.

The allegations went on. Logerot contended that Morien asked her questions about her sexual history, whether she had ever flashed herself driving down the freeway from Las Vegas, and if she and her husband had sex in bathrooms in their spare time. Logerot contended that Morien did not ask the questions of any other applicants male or female, and that there were no Department documents, writings, memos, or e-mails authorizing Morien to ask sexual questions.

When Logerot was not hired, she sued for sexual discrimination and harassment. The California Court of Appeals dismissed her lawsuit.

The Court found that to show sexual harassment, Logerot had to show that she was subjected to unwelcome sexual advances, conduct or comments, and the behavior was based on sex; and the behavior was sufficiently severe or pervasive to alter the conditions of employment and created an abusive work environment. But, the Court found, “not all sexually coarse, offensive or vulgar language in the workplace is actionable. Hostile work environment sexual harassment only arises when the totality of the circumstances shows the harassing behavior is pervasive or severe. When the conduct involves nothing more than a few isolated incidents, the employee must prove that the conduct was severe in the extreme.

“The undisputed evidence established that during the background interview, Morien asked plaintiff a number of unwelcome sexually based questions. The language was sexual and private in nature. Nevertheless, there is no merit to the sexual harassment claim because the severe and pervasive element could not be established. Rather, the undisputed evidence shows an isolated incident over the course of several hours in which approximately ten questions of a sexual nature were asked. Under the totality of the circumstances, Morien’s conduct was not severe in the extreme to amount to hostile work environment sexual harassment.”

Logerot, Plaintiff and Appellant v. County of Los Angeles, 2012 WL 3578152 (Cal. App. 2 Dist. 2012).