Spotting signs of sexual harassment at work

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Beth Silverman worked as a Deputy District Attorney for the County of Los Angeles since 1994. In 2006, she joined the Major Crimes Division (MCD), an elite trial unit in the DA’s Office that prosecutes complex and high-profile homicide cases. In 2011, Gary Hearnsberger became the Head Deputy of the MCD and Silverman’s supervisor. Silverman and her fellow attorney, Tannaz Mokayef, claimed they were subjected to repeated sexual harassment and unwanted sexual touching by Hearnsberger.

Silverman alleged that Hearnsberger physically touched her on her buttocks, thigh and chest area on many occasions. Hearnsberger also made sexually inappropriate comments to Silverman, referring to genitalia on many occasions, and made sexually suggestive gestures including simulating oral sex and the sexual act by thrusting out his pelvis.

Silverman also alleged that Hearnsberger created a hostile work environment by engaging in graphic sexual comments with other employees. He also created an environment of sexual favoritism where female attorneys in the unit who engaged in sexually explicit banter with him, allowed him to touch and grope them, or provided sexual favors to him, were, in exchange, given career-enhancing benefits, such as being assigned to high-profile cases or being given high performance ratings. Silverman alleged that the county knew of the supervisor’s behavior to her and to several other women but did nothing to stop it.

When Silverman rejected her supervisor’s physical advances, the latter retaliated by denying her case assignments, criticizing her in the presence colleagues and subjecting her to verbal abuse. Silverman sued her employer and the supervisor for sexual harassment, claiming emotional distress and damage to her career and reputation. After the filing of her lawsuit, her supervisor gave her a poor performance rating even though she had just successfully prosecuted a serial murderer.

The employer and the supervisor denied Silverman’s allegations, that they were fabrications, and that Silverman was a “disgruntled employee.” However, rather than proceed to trial, the county agreed to a total of $700,000 to settle the case.

Although the law is not designed to rid the workplace of vulgarity, specific conduct may cross the line from “vulgarity” into sexual harassment. Courts recognize two types of sexual harassment.

The first type is called quid pro quo harassment. This harassment exists when submission to a sexual conduct is made a condition of employment benefits. Silverman’s allegations provide a classic example of quid pro quo harassment. The supervisor provided better assignments and higher evaluations to employees allowed him to touch and grope them or provided sexual favors to him.

The second type involves harassment created by a “hostile environment.” This claim may arise where unwelcome sexual conduct unreasonably interferes with an employee’s job performance or creates an intimidating, or hostile working environment, even if it does not lead to economic job benefits. In Silverman’s case, the supervisor’s unwelcome sexual comments and inappropriate touching of Silverman despite her requests to stop created a hostile work environment for Silverman (and others who witnessed this interaction), even if there was no threat of termination.

In either type of sexual harassment, the complainant must establish that the sexual conduct is unwelcome, or must create a work environment that would be intimidating, hostile, or offensive to reasonable people.  Because it was a supervisor that committed the sexual misconduct, the county as the employer will be deemed liable for the harassment.

The Law Offices of C. Joe Sayas, Jr. welcomes inquiries about this topic. All inquiries are confidential and at no-cost. You can contact the office at (818) 291-0088 or visit www.joesayaslaw.com or our Facebook page Joe Sayas Law. [C. Joe Sayas, Jr., Esq. is an experienced trial attorney who has successfully recovered wages and other monetary damages for thousands of employees and consumers. He was named Top Labor & Employment Attorney in California by the Daily Journal, consistently selected as Super Lawyer by the Los Angeles Magazine, and is the recipient of PABA’s Community Champion Award for 2016.]