In July 2016, Petra Jackson (Jackson) began working at Pepperdine University (Pepperdine) as an admissions administrator. At a staff event in November 2016, Jackson mentioned to a pregnant coworker that she hoped the Cleveland Indians would win the World Series that evening. Another Pepperdine employee, Murzi Kay (Kay), overheard Jackson’s comment. According to Jackson, Kay then said Jackson and her husband “need to be really careful tonight and take your birth control. Because if the Indians win, you’re going to end up … [having] a baby. You’re going to really go at it tonight and you need to make sure you wear extra protection.” Jackson asserted that Kay approached her later that day and added:
“Whatever you were doing last night, you need to make sure you do the exact opposite thing tonight. Whatever you ate last night, make sure you don’t eat it again, even if there are leftovers. If you were wearing clothes, don’t wear any clothes tonight while you watch the game. Just watch the game naked. I mean, that would be awkward if you had other friends around and not just your husband, but don’t wear any clothes.”
Jackson stated she reported Kay’s comments to Pepperdine’s Associate Director of Human Resources. Pepperdine’s Executive Director of Student Financial Services and Admissions, Natasha Kobrinsky, called Jackson later that day to discuss Kay’s comments. Jackson asserted that Kobrinsky made excuses for Kay’s conduct, such as he was “from a different generation,” and made comments to Jackson, such as she was “overly sensitive” and needed to have a “thicker skin.” About two weeks later, Jackson and Kay attended a mediation with Kobrinsky, during which Kay stated that if what he said “was taken a certain way, I was wrong and therefore I apologize.”
Jackson alleged that Pepperdine did not conduct a formal investigation or offer her any support or accommodations following her complaint. She asserted that she had daily fear and anxiety and an increasing inability to complete her daily work, which left her with “no reasonable alternative except to resign” about three and half months after Kay made the comments. Jackson did not allege that Kay made any additional comments or harassing behavior after the two encounters that occurred on that day in November 2016.
Jackson filed a complaint against Pepperdine, Kay, and Kobrinsky, alleging causes of action for discrimination based on sex, sexual harassment, retaliation, defamation, negligent infliction of emotional distress, and intentional infliction of emotional distress. Jackson also brought a hostile work environment sexual harassment cause of action against Pepperdine only. The trial court dismissed Jackson’s complaint. Jackson appealed just the harassment and failure to protect causes of action.
The Fair Employment and Housing Act (FEHA) makes it an unlawful employment practice for an employer to harass an employee because of sex. Under the FEHA, the definition of sexual harassment is broad and includes expressly or impliedly conditioning employment benefits on submission to or tolerance of unwelcome sexual advances and the creation of a work environment that is hostile or abusive based on sex. To prevail on a claim of sexual harassment based upon a hostile work environment, an employee must demonstrate that “the conduct complained of was severe enough or sufficiently pervasive to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees because of their sex.” Further, to be actionable, the employee must perceive the workplace as hostile or abusive and must show that a reasonable person in the employee’s position, considering all the circumstances, would also share the same perception.
The Court found that Jackson failed to “allege conduct so severe that it created a working environment that a reasonable person—of any gender—would consider hostile or abusive.” The Court explained that Kay’s comments were “crude and inappropriate,” but they were not so offensive that a reasonable woman would consider “her workplace significantly altered for the worse” or would have been so fearful of hearing another similar remark that she would be unable to perform her work duties. Further, the Court noted that the fact that Kay made two brief comments on the same day, one of which occurred at a workplace social event, further indicated that the alleged conduct was not sufficiently severe.
In assessing Jackson’s failure to protect the cause of action, the Court noted that because she failed to allege a claim of actionable sexual harassment, her action for failure to prevent sexual harassment necessarily failed as well. Accordingly, the Court affirmed the trial court’s decision dismissing Jackson’s claims.
Jackson v. Pepperdine University (Cal. Ct. App., Sept. 1, 2020, No. B296411) 2020 WL 5200946. (unpublished)
NOTE:
The FEHA prohibits discrimination, harassment, and retaliation and requires that employers take reasonable steps to prevent and correct wrongful (e.g., harassing, discriminatory, or retaliatory) behavior in the workplace. Accordingly, schools that learn of potential sexual harassment should promptly determine whether the report involves behavior that is serious enough to warrant a formal investigation or that may be resolved by more informal steps, such as counseling the individual. Any investigation should result in a factual determination of what actually occurred and implementation of effective remedial measures, as appropriate. For more information about harassment and workplace investigations, see the California Department of Fair Employment and Housing Workplace Harassment Prevention Guide for California Employers.
