The California Court of Appeal has held that staring at a fellow employee may constitute sexual harassment under the Fair Employment and Housing Act (FEHA). [Birschtein v. New United Motor Manufacturing, Inc., 2001 WL 1187120.]
Birschtein worked on an assembly line at New United, an automotive manufacturing plant. In late 1995, George Bonillia, a forklift driver for New United, asked Birschtein out on a date. He also made sexually explicit comments to her and related sexual fantasies that he was having about her. After Birschtein declined Bonillia’s advances and complained to her supervisor about his conduct, Bonillia stopped speaking to her. However, he began a staring campaign. According to Birschtein, Bonillia would drive to or by her workstation several times a day and would stare for at least several seconds. Sometimes he would stop his forklift and stare for five to ten minutes at a time. New Union investigated Birschtein’s complaints but did not take any disciplinary action against Bonillia.
After the trial court granted summary judgment to New United, Birschtein appealed and the California Court of Appeal reversed. The Court of Appeal addressed two issues: (1) whether Bonillia’s conduct could be characterized as sexual harassment to support an FEHA claim, and (2) whether the continuing violation doctrine saved Birschtein’s claim from the statute of limitations.
The Claim of Sexual Harassment. The Court of Appeal rejected New United’s claim that Bonillia’s conduct of staring was not “harassment based on sex.” The Court noted that sexual harassment based on a hostile work environment need not have anything to do with sexual advances. Rather, a plaintiff claiming hostile work environment need only show that gender is a substantial factor in the conduct and that the plaintiff would not have been treated in the same manner if she had been a man.
The Court also rejected New United’s argument that repeated acts of staring at a fellow worker can never qualify as actionable sexual harassment. Here, the Court noted that Bonillia’s original overt acts of sexual harassment turned into retaliatory acts of staring repeatedly and consistently at Birschtein after she complained to management. Therefore, the Court held that Birschtein had presented enough evidence for a jury to decide, “whether Bonillia’s apparent retaliatory acts were sufficiently allied with the prior acts of harassment to constitute a continuing course of unlawful conduct.”
Application of the Continuing Violation Doctrine. The continuing violation doctrine comes into play when an employee’s claim is based on conduct that occurred both within the statute of limitations period and outside the statute of limitations period. An employee may rely on conduct occurring outside the limitations period only if (1) the conduct is sufficiently similar in kind; (2) the conduct occurs with sufficient frequency; and (3) the conduct has not acquired a degree of “permanence” so that an employee is on notice that further, informal conciliation efforts with the employer to end harassment would be futile.
The Court of Appeal determined that Birschtein presented sufficient evidence for a jury to decide whether Bonillia’s conduct met the first and second parts of the test. The Court did not address whether Birschtein met the third prong of the test, “permanence,” leaving that question for development at trial. Thus, the case was remanded to the trial court for further proceedings.