If an employee complains about a sexually suggestive picture circulating in the workplace that looks like her but is not, is that a hostile work environment complaint? It might be. In Lillian Carranza v. City of Los Angeles, a California appeals court recently upheld a $4 million verdict for a former Los Angeles Police Department captain who complained about just such a circumstance.

The Facts

Lillian Carranza was a LAPD captain. She learned that a photo of a topless woman who looked like her, but was not her, was circulating electronically among her LAPD colleagues. Carranza never saw the photo, but she heard from others that it was being circulated and talked about across the department. Carranza complained and asked the department to order the employees to stop sharing the photo, but the LAPD did not and did not discipline any of the officers involved. Carranza sued under the California Fair Employment and Housing Act, claiming she was subjected to a hostile work environment based on her sex, and a jury agreed with her.

The City of Los Angeles argued that Carranza did not experience the harassment directly and that the conduct was neither severe nor pervasive enough to alter the conditions of her job. The appeals court disagreed and affirmed the judgment. The court noted after Carranza reported the conduct, the LAPD failed to notify employees that it was not Carranza in the photo, failed to take steps to stop the photo from being distributed, and failed to discipline anyone involved in the distribution of the photo.

Takeaways

Conduct does not have to be direct to be severe or pervasive to rise to the level of hostile work environment. In other words, it may not be necessary for the employee to personally witness the inappropriate behavior.

It is also not necessary that the harassment be prolonged or happen more than once. The standard is severe or pervasive. Even a single incident can constitute harassing conduct if it is bad enough and creates a hostile work environment. Carranza did not have direct interaction with a coworker about the photo, and she did not experience any direct sexual hostility in the work environment as a result of the photo being disseminated throughout the workplace. However, she learned of the behavior, and it affected her work conditions, which the court found sufficient to support a harassment claim.

Things to remember when an employee complains about potential harassment:

• An employer’s delayed response or lack of response altogether to a report of inappropriate workplace conduct could turn conduct that may not ordinarily rise to harassment into an actionable harassment claim.
• An employer’s perceived inadequate response to a claim of harassment can play a key role in a jury’s determination of liability and damages.
• Employers should strive to make a prompt and sincere response to a report of workplace misconduct.
• Consider measures outside of disciplinary action for the alleged wrongdoers when implementing corrective actions (such as a workplace announcement reminding employees of company policy, an announcement asking employees to refrain from engaging in some problematic activity, or a mandated training course).