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DrJ · Oct 6, 2015, 07:14 PM

Man says to woman on phone call (both don't know each other)

"What are you wearing?" (3 times)

And

"What color is your underwear?"

Is this considered sexual harassment in the state of CA?

J_9 · Oct 6, 2015, 07:38 PM

Lol. Yes, it could be construed as such.

DrJ · Oct 6, 2015, 07:42 PM

Hoping so. It happened on a business call with one of my employees. The man sounded like he is going to cause some troubles for us and since he thought we were breaking the law, he apparently thought it okay to persist with these questions.

We've had this kind of thing happen before and they come around threatening lawsuits but looking for a payoff. But I have this conversation recorded and was just hoping for some ammo should he come a'knockin ;)

cdad · Oct 6, 2015, 07:58 PM

Were both persons part of the same company or was either party an outsider that is doing business with the company by phone ?

J_9 · Oct 6, 2015, 08:00 PM

Originally Posted by cdad

Were both persons part of the same company or was either party an outsider that is doing business with the company by phone ?

It really doesn't matter. Either way it is sexual harassment.

DrJ · Oct 6, 2015, 08:13 PM

The man is an outsider. The woman is with the company.

It was a telephone solicitation call (yes, yes.. save it for another thread lol) but the man had committed to the purpose of the call. He was then transferred to the woman for verification. After she introduced herself, he started in with the questions (while interjecting that what we were doing was illegal... which it is not).

J_9 · Oct 6, 2015, 08:43 PM

It was of a sexual nature, therefore it is sexual harassment.

Fr_Chuck · Oct 7, 2015, 02:36 AM

Actually in California, sexual harassment is only a business law, so it does matter, if they work at the same place or have a established business relationship.

While other relationships may be, it is not against that specific California law.

The harassment normally must contain at least one of the following:

makes sexual advances
makes solicitations
makes sexual requests
makes demands for sexual compliance

Also the person claiming to be harassed must have made at least one demand for the behavior to stop.

Before pursuing a civil suit under California law, a plaintiff must first exhaust his or her administrative remedies by filing a complaint with the Department of Fair Employment and Housing (DFEH) or with the Equal Employment Opportunity Commission (EEOC).

So in the case of this phone call

It would not appear that there is any legal case here, Since the women on the phone did not appear to tell the other person to stop, nor did they not merely hang up.

ScottGem · Oct 7, 2015, 05:20 AM

I'm with Chuck. This is not Sexual Harassment. Nor could it be prosecuted that way. However, he could prosecuted under lewd behavior statutes:

From: Lewd conduct - Criminal Law Lawyer Source
Lewd conduct is any unlawful act committed by an individual with the purpose of arousing the libido or sexual interest of themselves or the person towards which this action is directed.

So, if he does pursue anything, you can check CA statutes on Lewd behavior and threaten prosecution.

smoothy · Oct 7, 2015, 05:40 AM

Everything I have ever heard from any of those classes I have been through at any employer... and in a lot of things... someone has to continue past the point of No, Stop or I'm not interested or anything to that effect being mentioned by the other party.

Otherwise flirting or even asking someone out for a date could easily be a prosecutible offense.

That's besides what is considered proper and improper behavior in the workplace.

talaniman · Oct 7, 2015, 05:44 AM

Can we assume you also have her reaction to his statements recorded?

ScottGem · Oct 7, 2015, 06:04 AM

Originally Posted by J_9

It was of a sexual nature, therefore it is sexual harassment.

As has been noted, the bar for sexual harassment requires more than being sexual in nature. It has to also be in a situation where there is a relationship between the parties. I.E. workplace, school, etc. I don't believe a customer/employee relationship qualifies. The harassment needs to be reported to an authority that can control the offending party. The authority then must take steps to stop the behavior. At least for there to be prosecution.

Yes, the customer here sexually harassed your employee. But it doesn't constitute sexual harassment from a legal standpoint. Nor could he be threatened with prosecution for it. But, as I noted, there are laws against lew conduct that this would fall under.

J_9 · Oct 7, 2015, 06:13 AM

Originally Posted by ScottGem

As has been noted, the bar for sexual harassment requires more than being sexual in nature. It has to also be in a situation where there is a relationship between the parties. I.E. workplace, school, etc. I don't believe a customer/employee relationship qualifies. The harassment needs to be reported to an authority that can control the offending party. The authority then must take steps to stop the behavior. At least for there to be prosecution.

Yes, the customer here sexually harassed your employee. But it doesn't constitute sexual harassment from a legal standpoint. Nor could he be threatened with prosecution for it. But, as I noted, there are laws against lew conduct that this would fall under.

As may be the laws in CA. However, this day in age, even a joke email containing sexual innuendo can be construed as sexual harassment.

I don't believe the gentleman in the thread could be prosecuted for this harassment, but there are other avenues to pursue.

ScottGem · Oct 7, 2015, 06:24 AM

Originally Posted by J_9

However, this day in age, even a joke email containing sexual innuendo can be construed as sexual harassment.

But, at least from a legal standpoint, it would depend on who sent the email and to whom. It it was sent from a co-worker to a group of co-workers that included some who were offended, then yes it is sexual harassment. But if I sent such an e-mail to all the members of my bike club, it would not be sexual harassment from a legal standpoint.

DrJ · Oct 7, 2015, 12:15 PM

We are not looking to pursue anything here but should this guy come back and attempt to extort us (as has happened before), I was just wondering if we had any legal leg to stand on. Here are the full contents of the recording:

HER: "Hello, this is _______ and who do I have the pleasure of speaking with?"

HIM: "Hi, what are you wearing, _______?"

HER: "Excuse me?"

HIM: "I said, 'what are you wearing?'"

HER: (nervous giggle) "Where did that come from? I think I'm gonna end this call. Thank you."

HIM: "Well, robocalls are illegal in the state of California. What are you wearing? What color is your underwear?"

HER: (nervous laugh) "You have issues."

HIM: "No, you do..."

HER: "Wow"

(end of call)

J_9 · Oct 7, 2015, 12:18 PM

Originally Posted by ScottGem

But, at least from a legal standpoint, it would depend on who sent the email and to whom. It it was sent from a co-worker to a group of co-workers that included some who were offended, then yes it is sexual harassment. But if I sent such an e-mail to all the members of my bike club, it would not be sexual harassment from a legal standpoint.

. If one member took offense, then yes, it could be construed as sexual harassment.

ScottGem · Oct 7, 2015, 02:00 PM

Oddly. My company started its annual sexual harassment training today. WE had a consultant doing the training so I posed this question both to her and my HR Manager. They agreed with me that this was not sexual harassment from a legal standpoint and not actionable as such. But it would be actionable as lewd behavior.

Fr_Chuck · Oct 8, 2015, 12:46 AM

Well, not wanting to discuss this much, I have decided to try and pass the Bar Exam again, and it happens to be for California. I did not pass many, many years ago.
So I am taking another year of legal study to prep me for the exam. I also posed this question on our tort and criminal law boards, The agreement is that this is not the case.

Also with the new information, was the call from the women, to the man? Did she call him? And was it a computer generated call?

If her call to him was indeed an illegal call, and in fact, she said, "you have issues" while his talk was improper, it was not to the level of harassment, but he may have a case for her insult to him. Two of the 20 law students on our board, would take his case against the company. None would take the harassment case.

Questionair · Oct 8, 2015, 07:49 AM

I do not think that you have anything to worry about. Sexual harassment is not going to be easily proven in this case. I would just continue to live my everyday life if I were you, do not pay this any mind.

J_9 · Oct 8, 2015, 08:07 AM

Now, I never said this was actionable in this instance. It's not. Yes, it's lewd behavior for sure. If it makes a person uncomfortable it can be "construed'" as sexual harassment.

Obviously Scott, your company and mine are of different schools of thought on sexual harassment. Or maybe it's location specific. I go through this training on a yearly basis.