Does Sexual Harassment Include Sex?

There are two recent decisions that we believe may be very significant for Plaintiffs in wrongful termination actions, particularly gender-based claims.

In Miller v. Department of Corrections, California Supreme Court, July 18, 2005, No. 114097, the court was faced with a fact pattern wherein a prison warden promoted women who were having sex with him, but did not promote women who were not having sex with him. On those facts, the court held that the women who were NOT having sex with the warden, and were being denied promotions, had standing to sue for sexual harassment.

In Christopher v. National Education Association, 05 C.D.O.S. 799, the 9th Circuit reversed a lower court’s dismissal of an action wherein a manager was accused of “shouting, screaming foul language, invading employees personal space, and making threatening gestures,” and held that the manager may be sued for gender discrimination under Title VII of the 1964 Civil Rights Act.

When we look at these cases, in conjunction with the widely acknowledged truism that “Since 2000, California employment law has diverged from federal law even more dramatically with California law being more favorable to employees…” (Rutter, Employment Law), it begins to look very difficult for a Defendant to obtain summary judgment on a gender-related claim in Federal court, and even more difficult in the California court system. It does not take much of a logical leap to apply this same rationale to other well-settled protected classes.

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