A claim under this theory may prevail if the harassment suffered by the employee was sufficiently severe and pervasive so as to unreasonably interfere with the victim’s job performance. The employee’s claim must be scrutinized from both a subjective and an objective perspective. For instance, the victim must subjectively perceive the harassing conduct as severe and pervasive (among other things), and her belief must be objectively reasonable as viewed from the perspective of a reasonable person under similar circumstances.

In addition to consulting a sexual harassment lawyer in Orange County, case law is another excellent means of gauging what the terms “severe” and “pervasive” have come to stand for. Courts have refused to acknowledge offensive conduct that occurred over the span of a single day, instances of debatable harassment that did not alter the conditions of the victim’s job performance, and brief and isolated incidents, as establishing the pervasive factor.

Further, Courts have held that in order for harassment to be severe, it must be more than mere horseplay or the use of gender-related jokes and teasing and that it must be considered within the context in which it occurred.

Did the Fuentes Court Place Too Much Emphasis on the Subjective Aspect?

AutoZone defended its case on appeal by discussing three other cases (Hughes v. Pair, 46 Cal.4th 1035 (2009), Mokler v. County of Orange, 157 Cal. App 4th 121 (2007), and Haberman v. Cengage Learning, Inc., 180 Cal.App 4th 365 (2009)), each of which was found to lack the severe and pervasive element but arguably demonstrated more abusive behavior on the part of the defendant.

However, the Fuentes court (The Second District Court of Appeal) exercised broad discretion and differentiated each case, in one way or another, from the case at hand. In its opinion, the court appeared to focus on the fact that Garcia and Carillo were Fuentes’ supervisors, as opposed to simply co-workers, and it reasoned that because their behavior was witnessed by customers and other employees, it was that much more appalling. However, the court’s logic seems a bit flawed since the facts of the three cases do not appear much different from the Fuentes case in these regards.

The court differentiated Fuentes’ case from the others by explaining that unlike Garcia and Carillo, the other harassers did not “supervise” the victim’s work. However, the other harassers were a trustee of a child’s trust, a member of the county board of supervisors, and a national sales manager, while the plaintiffs were the child’s mother, a county employee, and a sales manager, respectively. Therefore, it appears that Fuentes’ case is actually comparable to the others in the sense that each of the defendants was in a higher level, and likely an authoritative, position over the victim employee.

Additionally, the court did not discuss whether the defendants’ conduct in the other cases was or was not witnessed by other individuals. Finally, the court took to classifying the AutoZone supervisors’ behavior as more vulgar and insulting than the harassment in the other cases—an observation which seems to find its basis solely in subjective reasoning, and dismissed the fact that swift action was taken to investigate Fuentes’ case and to terminate the perpetrators.

While the defendants in Fuentes v. AutoZone indeed showcased deplorable behavior, it seems that the court ignored the objective requirement (discussed above) and examined the entire case from a subjective perspective. Thus, this case has been cited as a reminder to employers that they must educate their employees and ensure that they abide by the company’s anti-harassment policy because once a suit has been filed; the fate of the employer lies in the hands of the court. Employers who have yet to implement such policies should definitely consult a sexual harassment lawyer in Orange County to discuss how to do so. The lawyers at Diefer Law Group are able to provide you with the assistance needed in pursuing your claim.