2/27/2008

When a Fresno jury in 2006 awarded $1.7 million for sexual harassment to an employee who charged that she was spanked as part of team-building exercises at work, the verdict sent ripples through the employer community as a stark reminder of the need to keep a close check on workplace conduct. Now, however, the verdict has been reversed and the case is going back for a new trial.

The lawsuit was filed by Janet Orlando, an employee of Alarm One, a home security company. The spankings that were the subject of Orlando's lawsuit were part of a motivational program in some Alarm One offices that encouraged sales teams to compete with each other. The winners poked fun at the losers by doing such things as throwing pies at the losers, feeding them baby food, and making them wear diapers. And when salespeople arrived late to a meeting or spoke out of turn, they were paddled on the buttocks with a competitor's yard sign in front of the room for all to see.

Orlando contended that after being spanked on several occasions in front of jeering co-workers, she was humiliated and embarrassed, and she quit her job. Although the jury agreed with her that the experience amounted to illegal sexual harassment and battery, a California appeals court recently discarded the verdict on the grounds that the jury wasn't properly instructed that a required element of a sexual harassment claim is that the harassment is because of sex. The appeals court pointed to evidence that both men and women were spanked, and it was possible the jury overlooked the issue of whether the misconduct was gender-related.

Antiharassment Training Is Key

We can't predict how Orlando's case will turn out in the second go-round before a jury, or even if it will make it as far as a new trial (Alarm One says that it has gone into bankruptcy). But the fact remains that conduct or comments that may be humiliating or embarrassing are never appropriate in the workplace, whether or not they rise to the level of illegal sexual harassment.

The California Employer Advisor offers practical tools to help you educate your workforce and supervisors and prevent harassment claims. CEA Online subscribers can download their free copies of two popular reports, "The Employer's Compliance Guide to Supervisor Sexual Harassment Training in California" and "The Step-By-Step Sexual Harassment Prevention Guide for California Employers," on our website. Both reports contain all the information you need to understand state and federal antiharassment laws and requirements—and stay in compliance and out of court. Not a subscriber? You can order each guide for just $14 and start protecting your business today.