Mae West once said "It is better to be looked over than overlooked." The California Court of Appeal, however, may disagree. In Birschtein v. New United Motor Mfg., Inc., 92 Cal. App. 4th 994 (2001), the Court reversed the lower court's grant of summary judgment, holding that a campaign of staring may constitute actionable sexual harassment.
Michelle Birschtein worked on an assembly line at an automotive manufacturing plant. Her duties required her to be stationed at a fixed point on the line throughout her shift. Parts and other materials were delivered to the assembly line by motorized forklifts. George Bonillia, one of the forklift drivers, asked Birschtein for a date three or four times and each time, she declined the invitation. Then Bonillia approached Birschtein at her jobsite and told her he wanted to "eat her." Birschtein yelled at Bonillia to leave her alone. He continued to sit on his forklift for a while before departing.
Two or three days later, Bonillia again approached Birschtein at the worksite and told her he was having fantasies about bathing her, drying her off, carrying her into his room, and putting her down on his bed covered with rose petals. Birschtein again yelled at Bonillia to leave her alone. He did not respond and continued to sit on his forklift for "about a minute" before driving off.
Fearful after these incidents, Birschtein began to carry mace to work. She also complained about Bonillia's conduct to her foreman. Following Birschtein's complaint to management, Bonillia never spoke to her again. Instead, he began a campaign of staring at her. For the next six months, Bonillia would drive to plaintiff's work station five or more times a day. Invariably, he would stare directly at her "for at least several seconds" each time; "He would drive by very slowly, at first, and just stare the whole time he was going by. And I work in a very large, open area. He started to sit behind . . . his forklift halfway behind one of the pillars and just sit there, five to ten minutes at a time, just staring at me." This sort of conduct would occur "at least five to ten times a day." In response, Birschtein gave him dirty looks and waved at him to go away but he would not.
Birschtein then complained to an assistant manager of the plant about Bonillia's staring. Birschtein later met with personnel from the plant's labor relations department and a union representative. Following these complaints to management, Bonillia's staring lessened somewhat. The staring incidents went down to "two, three times a day." Bonillia's stares during this period lasted five to ten seconds. And Bonillia would no longer stop his forklift, driving past Birschtein's workstation instead. Describing Bonillia's staring during this post-complaint period, Birschtein said, "He didn't have the exact same look on his face that he did before I turned him in . . . . He had moreÂ—I don't knowÂ—just a little more of an upset-type look." Birschtein admitted there was nothing sexually suggestive about the way Bonillia looked at her during this time. Once, however, Bonillia drove past her workstation with one hand placed on his crotch.
The trial court granted the employer's motion for summary judgment, stating that Birschtein had "failed to raise a triable issue of material fact that Bonillia's alleged conduct constituted actionable harassment, or that Bonillia's alleged conduct was 'severe or pervasive' harassment based on plaintiff's sex." The Court of Appeal overturned, holding Birschtein's claims of sexual harassment and retaliation were actionable on the factual record, precluding summary judgment for the employer.
The Court of Appeal held, "particularly in light of Bonillia's prior conduct, repeated acts of staring at a fellow worker can qualify as actionable sexual harassment . . . ." The Court of Appeal found that "what began as Bonillia's overt acts of sexual harassment . . . were later transmuted by plaintiff's reaction . . . into an allegedly daily series of retaliatory acts Â– the prolonged campaign of staring at plaintiff Â– acts that were directly related to, indeed grew out of, the antecedent unlawful harassment." According to the Court of Appeal, "such a skein of harassment and complaint followed by retaliatory acts" characterizes a "continuous manifestation of a sex-based animus."
The Court of Appeal concluded Birschtein had raised a triable issue of material fact, i.e., whether Bonillia's retaliatory acts were sufficiently allied with his prior acts of harassment to constitute a continuing course of unlawful conduct. The Court reiterated that "to plead a cause of action for sexual harassment, it is only necessary to show that gender is a substantial factor in the discrimination and that if the plaintiff had been a man, she would not have been treated in the same manner." Therefore, "the creation of a hostile work environment  need not have anything to do with sexual advances."