January 2021

Workplace harassment continues to be a significant problem for employers and employees in California. A recent study showed that women and men in California are subjected to sexual harassment at a rate higher than the national average.[1]  That same study found that more than 86% of women and 53% of men in California have experienced some form of sexual harassment or assault.

Employees are challenging sexual harassment through administrative agencies, such as the Department of Fair Employment and Housing (“DFEH”) and through civil lawsuits. In 2019, the DFEH received 22,584 complaints. Of these, over 7,000 concerned claims of sexual harassment.[2]  Many of the largest employment law verdicts in California in 2019 were based on claims of sexual harassment, including a $58 million dollar verdict in Khan v. Hologram USA, Inc.[3]

The new federal case Christian v. Umpqua Bank is a good reminder that employers have a duty to protect employees from harassment, even when that harassment comes from a third-party.

Jennifer Christian worked for an Umpqua Bank branch. During her employment, Ms. Christian helped set-up a checking account for a customer. Soon thereafter, the customer began visiting the bank branch to drop off notes to Ms. Christian, calling her beautiful and expressing a desire to go on a date with her. Ms. Christian reported the conduct to a supervisor but was told only to “watch out” and that such conduct could “escalate.”  The customer continued sending Ms. Christian letters and even sent her flowers Valentine’s Day with a card calling Ms. Christian his “soulmate.”  Ms. Christian learned from co-workers that the customer came into the branch when she was not there and asked about Ms. Christian. Co-workers called the customer “creepy” and told Ms. Christian to be careful. Ms. Christian continued to communicate the customer’s behavior to her supervisors, but rather than taking any action, Ms. Christian’s supervisors told Ms. Christian to reach out to the customer to ask him to stop.

The customer’s conduct, unfortunately, continued.  The customer appeared at a charity where Ms. Christian was volunteering and spent his time there staring at Ms. Christian. A few days later, the customer came into the branch and Ms. Christian’s manager told her to assist the customer. The customer returned sometime later just to sit in the lobby for an hour watching Ms. Christian. Ms. Christian again reached out to supervisors who suggested that she should just hide in the break room if the customer came into the branch.  The supervisors also offered to relocate Ms. Christian to a new branch. Ms. Christian requested that the bank issue a no-trespassing order to the customer, but no such order was sent. Ms. Christian eventually sought a transfer, even though she knew her hours might be cut, and soon thereafter resigned her employment.

The trial court originally dismissed the case on summary judgment. Ms. Christian appealed and the appellate court overturned the lower court’s ruling. The appellate court ruled that the customer’s actions were not isolated events but evidenced a pattern of frequent conduct of the same type, by the same bad actor. Although much of the customer’s conduct was indirect through letters and interactions with co-workers, conduct does not need to be direct to be sexually harassing.  The conduct must only be severe enough to changes the terms and conditions of employment. In Ms. Christian’s case, there was sufficient evidence of a change of the terms and conditions of her employment. She testified to being fearful and expressed her fear to supervisors and co-workers. She was told to contact the customer and to assist the customer when he came into the branch. Ultimately, Ms. Christian transferred and resigned her employment. 

The appellate court remanded the case to determine if Umpqua Bank was liable by not taking reasonable steps when it knew Ms. Christian was being harassed by a customer.  The court highlighted several areas where the Bank may have failed in its duty to Ms. Christian, including not developing a safety plan, not taking steps to bar the customer from entering the branch, and not speaking directly to the customer. More egregiously, the Bank improperly put the burden on Ms. Christian by telling her to contact the customer to ask him to stop his conduct, by telling her to hide from the customer in the breakroom, and by transferring Ms. Christian to a new branch. 

Employers should learn from the Christian decision and remember that they have a duty to protect their employees from sexual harassment in the workplace, regardless of the form.  Employers faced with a sexual harassment claim must address the harassing conduct, take steps to prevent future harassment, and minimize the impact on the harassed employee. 

[1] https://health.ucsd.edu/news/releases/Pages/2019-05-23-california-above-national-average-sexual-harassment-rates.aspx

[2] https://www.dfeh.ca.gov/wp-content/uploads/sites/32/2020/10/DFEH_2019AnnualReport.pdf

[3] https://topverdict.com/lists/2019/california/top-50-labor-employment-verdicts

Do you need assistance in protecting your business from sexual harassment claims?  Gibbs Giden can help.

Contact:

Matthew Wallin, Esq.

mwallin@gibbsgiden.com

(310) 552-3400

Matthew Wallin is a senior associate in the Los Angeles office where he practices labor and employment law.  He has extensive experience defending private business and public entities in litigation involving discrimination, harassment, retaliation, and wage and hour disputes. He has also defendant against assault and workplace violence claims.  

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