Employees and employers alike are often confused about just what constitutes a hostile work environment. What some may experience as hostile is often perceived as no big deal by others. While the hostile work environment legal analysis remains highly fact-specific and must be assessed on a case-by-case basis, a recent California appeals court decision suggests that when comments of a possibly sexual nature occur in the context of mutual banter, a hostile work environment might not be found.

What Happened

“Ardala” was a sales representative with Cengage Learning, Inc., in the Northern California city of Belmont. From the time of her hire in 2004, Ardala and her national sales manager, “Buck,” engaged in mutual, sometimes playful banter. Buck commented on several occasions that Ardala was attractive or pretty. After his wife’s passing from terminal cancer, Buck mentioned to Ardala his desire to have a sexual relationship with someone, adding that he wasn’t yet ready for a new romantic relationship. Ardala in turn frequently complimented Buck on how good it was to work with him and sent him e-mails of a flattering but nonsexual nature. E-mail evidence showed that Ardala and Buck consistently enjoyed a friendly and casual rapport and appeared to enjoy each other’s company.

In March 2007, Cengage hired a new district sales manager, “Rix,” to whom Ardala would now report. Rix and Ardala had a more formal working relationship and did not engage in the same kind of joking around Ardala had with Buck. In addition, Rix was tasked with seeing that Ardala met her annual sales goals, which she had not done in the previous 2 years when she reported directly to Buck. In 2007 and 2008, Rix repeatedly talked with Ardala about the need to improve her sales performance and reported to Buck that Ardala’s sales were far below expected standards.

In September 2007, during a conversation with Rix about her lagging sales numbers, Ardala made a vague reference to being harassed by Buck. A month later, 2 days after she was placed on a formal performance improvement plan (PIP), Ardala complained to Cengage’s HR department that she’d been sexually harassed. Ardala declined to provide specific details at that time.

Later, Ardala complained to Rix that Buck routinely sexually harassed her. Ardala then went on medical leave for nearly a year, until her termination in August 2008. Following her termination, she filed a lawsuit alleging sexual harassment, retaliation, and intentional infliction of emotional distress.

What the Court Said

Agreeing with the trial court, the court of appeals ruled that Ardala didn’t establish that she was sexually harassed or subjected to a hostile work environment. The court also found no evidence that she was terminated in retaliation for complaining about sexual harassment. Given that there was no underlying violation of law, the court dismissed her emotional distress claim as well.

The court noted that many of Buck’s comments that Ardala complained about were not of a sexual nature and did not regard her gender. For example, she said that Buck commented to her about advice he’d gotten about dating from a grief counselor after his wife’s death. Comments like this could not provide the basis for a sexual harassment claim. Furthermore, the court found that the few statements Buck made that were arguably sexual in nature were not so “severe and pervasive” as to constitute a hostile work environment.

The court also observed that Ardala presented no evidence that at the time she was placed on the PIP for not meeting sales goals—ultimately the reason for her termination—she had made any complaint of sexual harassment. Thus, the appeals court upheld the dismissal of Ardala’s lawsuit. Haberman v. Cengage Learning, Inc., Cal. Court of Appeal (Dist. 4), No. G041638, (2009).

Practice Tip

Although many sexual harassment lawsuits will eventually be dismissed by a court, defending unfounded claims is time-consuming and expensive. Training managers and supervisors that even in friendly, casual relationships with subordinates, avoiding topics of a sexual nature will help reduce the number of frivolous lawsuits your company must defend.