When is Sexual Harassment NOT Severe and Pervasive?

The verdict is in and the California Court of Appeal upheld the summary adjudication of claims of sexual harassment and intentional infliction of emotion distress in the case McCoy v. Pacific Maritime Association, et al., when comments regarding other women’s bodies were made in McCoy’s presence about five to nine times.  The court provided the following case law regarding sexual harassment:
“California law prohibits sexual harassment in the workplace. (§ 12940, subd. (j).) In order to prevail on such a claim, an employee “must demonstrate that the conduct complained of was severe enough or sufficiently pervasive to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees because of their sex.” (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 462.) Harassment that is “occasional, isolated, sporadic, or trivial” generally fails to meet this standard. (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 283.) There is both a subjective and objective component to this standard. (Id. at pp. 283-284.) “[A] plaintiff who subjectively perceives the workplace as hostile or abusive will not prevail under the FEHA, if a reasonable person in the plaintiff‟s position, considering all the circumstances, would not share the same perception.” (Id. at p. 284.)…There is no requirement that a plaintiff alleging such conduct be the direct target of the harassment; however, “sexual conduct that involves or is aimed at persons other than the plaintiff is considered less offensive and severe than conduct that is directed at the plaintiff.” (Lyle v. Warner Brothers Television Productions, supra, 38 Cal.4th at pp. 284-285.) In such cases, it is necessary “to establish that the sexually harassing conduct permeated the plaintiff‟s direct work environment.” (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 610, italics added.)”
The Appellate Court upheld the lower court’s decision reasoning that McCoy’s factual allegations were not sufficient to support a claim for sexual harassment under the hostile workplace theory.  More specifically, the Appellate Court stated that the number of times the comments were made was at most nine and at the least five times, that these were comments not directed at McCoy but at other women outside their presence and while they were crude, they were not so severe and pervasive to alter McCoy’s work environment nor did the conduct create a work environment that permeated with sexual harassment.  This is not to say that in other situations cannot be distinguished from this case, but the number of occasions and the content of the comments, were simply not enough to be sexual harassment in the McCoy case.