Good news for California employers in sexual harassment cases arrived recently in the 4th District Court of Appeal's opinion in Haberman v. Cengage Learning, Inc., 2009 DJDAR 17689 (12/18/09). In Haberman, the court held that a plaintiff who alleges upwards of 10-20 "incidents" of so-called sexual harassment comprised of comments like, "You look really hot today" or "My customer says he really wants to date you" or asking plaintiff if she has any friends "who just want to have sex" - failed to establish a hostile environment sexual harassment claim and summary judgment was proper.

In Haberman, the plaintiff alleged sexual harassment against two individuals, based on six incidents against one and 13 against the other. As to the first individual, the court held that most of the incidents alleged against him were not sexual in nature and the few that were were not sufficiently severe or pervasive to constitute sexual harassment. As to the other individual, the court determined two of the 13 alleged incidents were not sexual in nature and the remaining 11 incidents, while possibly vulgar, were brief and isolated and insufficient to constitute a hostile environment.

Haberman is important for defendants/employers. Most California sexual harassment cases involve claims of hostile work environment, and unless there has been overt touching or other severe incidents, these claims are generally supported by allegations of a series of bad or offensive comments and incidents. The question has alway been "how much is enough?" How many bad comments are necessary to turn a workplace into a hostile work environment? Up until Haberman, employers have had to rely on out-of-state and federal cases to support their argument that even a large number of "boorish", "brazen", or "suggestive" comments do not rise to the level necessary to make out a claim for a hostile work environment. Now we have Haberman, a California court opinioin that finds even up to 20 incidents of alleged sexually harassing comments is not enough as a matter of law! Nice. Therefore, a decision by a California appellate court on similar facts is extremely useful for obtaining summary judgment and Haberman fills a void in California case law.

The plaintiff in Haberman was also typical in that she didn't raise the allegations until she'd been placed on a Performance Improvement Plan and then went out on a stress leave from which she never returned. Whether that influenced the Haberman court's determination that summary judgment was proper is not reflected anywhere in the opinion, but hopefully it will quietly send a message to plaintiffs and their counsel that they can't establish a hostile work environment with a trumped up volume of alleged comments raised only belatedly. As the California courts have declared repeatedly over the years, FEHA is not a "civility code and is not designed to rid the workplace of vulgarity." Let's hope Haberman is the way for employers to successfully enforce that message.