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Staring may constitute sexual harassment, California court rules.

An employee who stares at a coworker may violate bans on gender-based harassment in the workplace, California's First District Court of Appeal has ruled. (Birschtein v. New United Motor Manufacturing, Inc., 112 Cal. Rptr. 2d 347 (Ct. App. 2001).)

The court quoted Accardi v. Superior Court, in which California's Second District Court of Appeal held that a plaintiff need show only that gender was a substantial factor in discrimination and that if she had been a man she would not have been treated in the same manner.

"[S]exual harassment ... [that creates] a hostile work environment need not have anything to do with sexual advances," the Accardi court stated. "It shows itself in the form of intimidation and hostility for the purpose of interfering with an individual's work performance." (21 Cal. Rptr. 2d 292, 295 (Ct. App. 1993).)

The plaintiff in the recent case, Michelle Birschtein, worked on an automotive assembly line in Fremont, California. Parts and other materials were delivered to the line via forklift several times a day. In late 1995, Birschtein declined forklift operator George Bonilla's multiple requests for dates. Around the same time, Bonilla made sexual remarks to Birschtein and told her that he fantasized about her. In addition, coworkers told Birschtein that Bonilla often looked for her when she left her workstation for breaks.

Frightened by Bonilla's behavior, Birschtein began carrying Mace to work. She also complained to her work-group leader, who spoke to Bonilla's group leader. Bonilla did not speak to Birschtein again, although, she claims, he began a staring campaign in retaliation.

In the first half of 1997, Bonilla drove his forklift to Birschtein's workstation five or more times a day to deliver parts. The opinion states that "invariably he would stare directly at her for at least several seconds and, eventually, for 5 or 10 minutes at a time."

Birschtein testified that she cast Bonilla "dirty looks" and waved him away but he did not change his behavior. She also said that he once drove past her workstation with his hand on his private parts.

In April 1997, Birschtein complained to an assistant manager of the auto plant. She later met with labor-relations personnel and a union representative.

After this, Bonilla stared less often and for only seconds at a time (though, Birschtein claimed, his staring was now more angry than lustful), and no longer stopped his forklift near her workstation.

The employer, United New Motor Manufacturing, Inc., had a written policy barring sexual harassment including "leering or staring, such as stopping work to watch others go by; excessive looking at someone's private body parts; whistling or making catcalls."

The company investigated Birschtein's complaints in 1997 and 1999 but did not take corrective action because, it claimed, Bonilla's actions did not warrant it.

Birschtein filed a sexual harassment suit against the employer for its failure to remedy the situation. The California Superior Court in Alameda County granted the defendant's motion for summary judgment in 1999. It ruled that Birschtein did not show that the staring constituted actionable harassment or that Bonilla's behavior was "severe or pervasive" harassment based on sex. It also ruled that Birschtein did not show that her employer's response was deficient or that she had been subjected to an adverse employment action for complaining.

On appeal, a unanimous three-judge panel reversed. It said that Bonilla's "overt acts of sexual harassment"--repeatedly asking for dates, making sexual comments, and describing sexual fantasies--were "transmuted" into "a daily series of retaliatory acts" when Birschtein complained. "Nothing more is required to state a claim for harassment," wrote Judge Laurence Kay.

The opinion cited the Tenth Circuit's decision in Hirase-Doi v. U.S. West Communications, Inc., in which the court ruled that "alleged threatening stares ... in apparent retaliation for the complaints about ... sexual harassment, were sufficiently related to the prior alleged sexual harassment that they could be found to constitute continuing sexual harassment." (61 F.3d 777, 784 n.3 (10th Cir. 1995).)

United New Motor Manufacturing has filed a petition for a hearing with the California Supreme Court, said one of Birschstein's attorneys, Stephen Fuerch of Pleasanton, California.
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Author:Reichert, Jennifer L.
Geographic Code:1U9CA
Date:Jan 1, 2002
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