A recent headline in a Los Angeles legal journal reads: “Los Angeles lawyers . . . provide an overview of new legislation in California designed to insure reduction of sexual harassment occurrences in the workplace.” Think about that. Legislation will insure reduction of incidents of workplace harassment. Granted, this is just the headline on the cover of the publication; the authors recognize it’s not the legislation that has any effect on behavior. Rather, as they point out, “reducing harassment on the job demands strong policies, diligent training, and accountability.” All the legislation does is ensure that lawyers representing employees and employers as well as neutrals, arbitrating and mediating harassment cases will continue to have plenty of work.
The major piece of legislation at issue is Senate Bill 1300 which, in 2019, added Government Code Section 12923 to the Fair Employment and Housing Act. The statute contains legislative declarations that “ a single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment;” “a discriminatory remark, even if not made directly in the context of an employment decision or uttered by a nondecisionmaker, may be relevant, circumstantial evidence of discrimination;” “it is irrelevant that a particular occupation may have been characterized by a greater frequency of sexually related commentary or conduct in the past;” and “Harassment cases are rarely appropriate for disposition on summary judgment.”
Other legislation passed last year expanded the classes of professionals subject to liability for sexual harassment; extended the time within which such claims must be filed; lowered the employee threshold from fifty to five (including temporary employees) for employers required to provide sexual harassment training; prohibited nondisclosure language in settlement agreements where the language precludes employees from disclosing factual information pertaining to sexual harassment lawsuits; and declaring unenforceable nondisclosure language regarding alleged criminal conduct or sexual harassment in administrative, legislative, or judicial proceedings.
With the exception of the training requirement, none of this legislation is likely to change anyone’s behavior. Employers across the country have been dealing with workplace harassment claims for decades now, revising policies, spending money on required training, hiring independent workplace investigators. To what end? According to an article entitled Sexual harassment: Have we made any progress? Quick, J. C., & McFadyen, M. A. Journal of Occupational Health Psychology, 22(3), 286–298 (2017), results of efforts over the past twenty years to reduce what the authors call “a continuing, chronic occupational health problem in organizations and work environments” have been “mixed.” This should come as no surprise. Most adults spend more time at work than they do any other single place. And, to paraphrase the old adage: “People will be people.”
A good place to start trying to effect change is in our own profession. Because we lawyers love our pretentious Latin phrases, the applicable one here is: Medice, cura te ipsum.
Let’s start with addressing blatant gender bias among attorneys and judges. Catchpole v. Brannon (1995) 36 Cal.App.4th 237 is, perhaps, the most notorious example of judicial bias in a reported sexual harassment case. In that case, the trial judge repeatedly demonstrated impatience with the proceedings, “which conveyed the sense he considered sexual harassment cases ‘detrimental to everyone concerned’ and a misuse of the judicial system.” Moreover, the court concluded that the accuser was not believable, based “on stereotyped thinking about women and misconceptions of the social and economic realities many women confront.” The Appellate Court concluded that the trial judge manifested “a predetermined disposition to rule against appellant based on her status as a woman” and that his “expressed hostility to sexual harassment cases and the stereotypical attitudes and misconceptions he adopted provide a reasonable person ample basis upon which to doubt whether appellant received a fair trial.”
Last year, a generation after Catchpole, the Commission on Judicial Performance removed Judge John Laettner from the bench noting: “the judge’s pattern of inappropriate comments to and about women, including female attorneys and other women who appeared or worked in his courtroom, reflected gender bias and was prejudicial misconduct and improper action.” According to the opinion, disqualifying him from serving as a judicial officer, “Judge Laettner claims that he did not know that comments about the physical appearance of women were improper, that he learned this from the commission’s investigation letter and discussions with his presiding judge, and that he was not trained on this issue until September 2018.” Inquiry Concerning Laettner, 8 Cal. 5th CJP Supp. 1, 1, 2019 Cal. Comm. Jud. Perform. LEXIS 3, *1.
As recently as last year, the Fourth Appellate District felt compelled to report an attorney to the California State Bar for manifesting such bias toward a trial judge. In Martinez v. O’Hara (2019) 32 Cal.App.5th 853, 855, the notice of appeal signed by the plaintiff’s lawyer referred to the ruling of the female judicial officer as “succubustic.” As the court wrote, educating those of us who had no clue what this word means: “A succubus is defined as a demon assuming female form which has sexual intercourse with men in their sleep. We publish this portion of the opinion to make the point that gender bias by an attorney appearing before us will not be tolerated, period.”
And, there’s this gem from the Second Appellate District. Briganti v. Chow (2019) 42 Cal.App.5th 504, 510-511. In this case, counsel wrote: “With due respect, every so often, an attractive, hard-working, brilliant, young, politically well-connected judge can err! Let’s review the errors!” When questioned at oral argument, respondent’s counsel stated he intended to compliment the trial judge. As the court noted, calling a woman judge—now an Associate Justice of the same Appellate court— “attractive” as respondent did twice at the beginning of a reply brief “is inappropriate because it is both irrelevant and sexist. This is true whether intended as a compliment or not. Such comments would not likely have been made about a male judge.” It’s unfortunate that, even today, an Appellate Court must remind us that
Objectifying or demeaning a member of the profession, especially when based on gender, race, sexual preference, gender identity, or other such characteristics, is uncivil and unacceptable. Moreover, the comments in the brief demean the serious business of this court. We review judgments and judicial rulings, not physical or other supposed personal characteristics of superior court judges.
Lawyers, judges, and arbitrators have a special obligation to model acceptable behavior and to call out those who manifest bias and engage in harassment.
This special obligation, however, also comes with the admonishment that we need to avoid “crying wolf.” As the Fourth Appellate District recognized last year:
The [FEHA] prohibits discrimination based on an employee’s disability or perceived disability, but it does not guarantee employees a stress-free working environment. FEHA does not take away an employer’s right to interpret its rules as it chooses, and to make determinations as it sees fit under those rules. The FEHA addresses discrimination. . . it is not a shield against harsh treatment at the workplace. Workplaces are rarely idyllic retreats, and the mere fact that an employee is displeased by an employer’s act or omission does not elevate that act or omission to the level of a materially adverse employment action.
Doe v. Department of Corrections & Rehabilitation (2019) 43 Cal.App.5th 721, 736 (internal quotations and citations omitted). While we all must remain vigilant and mindful of what constitutes appropriate behavior, even calling judges or arbitrators to task if warranted, we must also remember:
it is extraordinary for an appellate court to find judicial bias amounting to a due process violation. The appellate court’s role not to examine whether the trial judge’s behavior left something to be desired, or whether some comments would have been better left unsaid, but to determine whether the judge’s behavior was so prejudicial it denied the party a fair, as opposed to a perfect, trial. Mere expressions of opinion, based on observation of the witnesses and evidence, do not demonstrate judicial bias. Numerous and continuous rulings against a party are not grounds for a finding of bias.
Schmidt, 2020 Cal.App. Lexis 54 at *29-30. Finding no gender bias on the part of the trial judge, the court in Schmidt, decided just a few days ago, noted the plaintiffs waived a jury in their sexual harassment case and “only when [plaintiffs] received the adverse results at the end of the trial process did they protest the trial judge’s supposed bias.”