The first incident occurred on January 29, 2003. Norby a newly elected supervisor introduced himself to Mokler the executive director of the Office of Aging (“OoA”) by asking her if she was married. When she responded no, he replied: “So you’re an aging nun.” Mokler felt degraded by this comment. When she complained to her previous supervisor, she was merely told to be careful.
The second incident occurred on February 5, 2003 at a hotel where the office was celebrating the election of a new supervisor. Norby grabbed Mokler by the arm and pulled her to him so that their bodies were touching. Norby then asked Mokler in a flirtatious manner: “Did you come here to lobby me?” When Mokler said no, Norby replied by stating: “Why not? These women are lobbying me.” Norby also told her she had a nice suit and nice legs, and looked her up and down. Mokler was shocked and pushed herself away from his grasp. When she complained to her previous supervisor again, he merely told her to be careful and that she needed “to win him over.”
The third incident occurred on March 3, 2003 in Norby’s office. Norby greeted Mokler by putting his arm around her and telling her she looked nice. He then pointed to a large map and asked her where she lived, demanding to know her exact address. Norby then put his arm around Mokler again, and as he did so, his arm rubbed against her breast. Mokler quickly pushed herself away and attempted to discuss services provided by OoA. However, Norby interrupted her by stating: “Why the ‘f[uck]’ do you have to something special for Mexicans?” Mokler was deeply offended by this derogatory remark.
The Court stated that even though these acts were rude, inappropriate, and offensive, they were not actionable. The Court compared the acts alleged here to other cases where the employers’ conduct was found to be insufficient to constitute a hostile work environment. (See, e.g., Quinn v. Green Tree Credit Corp. (2d Cir.1998) 159 F.3d 759, 768 [harasser’s statement that plaintiff had been voted the “ ‘sleekest ass’ ” in the office and single deliberate act of touching plaintiff’s breasts with papers he was holding in his hand held insufficient]; Weiss v. Coca–Cola Bottling Co. of Chicago (7th Cir.1993) 990 F.2d 333, 337 [insufficient where supervisor told plaintiff how beautiful she was, repeatedly asked her out, tried to kiss her on three separate occasions, put “ ‘I love you’ ” signs on her work area, and touched her shoulder at least six times]; Chamberlin v. 101 Realty, Inc. (1st Cir.1990) 915 F.2d 777, 783 [five sexually motivated advances on plaintiff over a four-or five-week period held insufficient for hostile work environment].) Mokler v. County of Orange (2007) 157 Cal.App.4th 121, 145
In effect, an employer has one chance – or in Mokler – at least three chances to harass an employee before such conduct becomes actionable. It is shocking that the law allows an employer to get away with conduct that is so blatantly offensive. Unfortunately, an employee who is grabbed inappropriately, degraded, or objectified by her supervisors generally has no recourse through the sexual harassment laws promulgated by the Fair Employment and Housing Act (“FEHA”).
Despite this, there are some ways you can vindicate your rights in the workplace. If you are being sexually harassed in the workplace, be sure to voice your concerns with your employer by filing a written complaint with any or all of your supervisors and with the HR Department within your company. If this does not work and the harassment continues to persist, then you can call us at 424-208-5766 and speak to one of our attorneys at Mostafavi Law Group for a free legal consultation.