For an employee to bring a sexual harassment lawsuit against an employer under California law, they must demonstrate in their complaint that the sexual harassment was either severe or pervasive enough to materially alter their working conditions. Carr v. Val Verde Unified School District, a 2019 California case, demonstrates that some claims do not meet that standard, and sexual harassment prevention training can help employees to identify what is and is not sexual harassment under the California Fair Employment and Housing Act (FEHA).
Derrick Carr was a janitor at Thomas Rivera Middle School, part of Val Verde Unified School District. In 2007, a security guard told Carr that Catherine Godwin, a teacher, had said that she did not trust him (Carr). When Carr confronted Godwin, she laughed. While cleaning her classroom in September 2015, Godwin made eye contact with Carr and said, “He’s a fucking pussy!” to another teacher.
Carr’s union representative accompanied him while Carr worked in Godwin’s classroom for the rest of the fall semester. Carr also complained to the school principal, who suggested Carr confront Godwin to inform her that he was offended by her conduct.
Carr then filed his complaint. On October 2, the District informed Carr that it did not find sufficient evidence to support his allegations. The following week, the superintendent met with Carr, Carr’s union representative, and the union president.
When Carr cleaned Godwin’s classroom in the subsequent weeks, Godwin rolled her eyes, frowned at him, and once walked toward Carr in a “lunging” manner. The District sent Carr a letter informing him that the school board agreed with the District that Carr’s original complaint lacked supporting evidence. Carr then spoke with the principal again and filed a retaliation complaint against Godwin. In December, the district informed Carr that his retaliation complaint also had insufficient evidentiary support.
In January 2016, Carr was swapped to another cleaning assignment, which entailed additional work time but not a commensurate pay increase. In May 2016, Carr asked to be moved off-site. The request was granted for the upcoming school year. Later that year, Carr was treated for stress with anti-depressants and advised to take a leave from work.
Carr then filed suit, alleging sexual harassment, failure to prevent sexual harassment, and retaliation. His case was dismissed on all counts.
On appeal, the court rejected Carr’s argument that Godwin’s actions constituted “severe or pervasive” sexual harassment. Regarding her 2007 comment that she did not trust him, he gave no facts that she did not trust him because he is male. The court also held that Carr overheard part of a crude conversation with another teacher about an unknown man; even if it were Carr, no facts were put forth to suggest that her insult was made because Carr is male. Even if all incidents occurred on the basis of sex, the alleged indignations are minor and do not amount to either severe or pervasive sexual harassment. Because no harassment occurred, nor actions that could be reasonably interpreted as sexual harassment, the District did not fail to prevent sexual harassment.
In its consideration, the court discussed a previous case that found “pussy” to be sexual harassment. The court noted that in that case, “pussy” was one of many targeted remarks intended to insinuate that the plaintiff was gay and insult his masculinity. Carr was not surrounded by such targeted remarks the way that plaintiff had been, so the court held that the word did not have the same power.
The appellate court reversed the dismissal on Carr’s claim of retaliation. The court held that he had pled sufficient facts to demonstrate that his cleaning assignment, changed days after he filed his second administrative complaint, may have negatively materially altered his working conditions because of his report of sexual harassment.
Even when an incident is not actionable sexual harassment, it can create hostility between coworkers. Under SB 1343, employers with five or more employees must provide California sexual harassment training to all employees. Such training can help coworkers to better understand how interactions can be interpreted in different ways and help management to prevent hostilities from escalating into litigation.