The Counsellor's Corner

The California State Supreme Court issued an interesting opinion last week which has been misinterpreted by many people. This was a case of sexual harassment in which Maryann Carrisales, a State Department of Corrections employee, claimed that she was sexually harassed by her coworker, Dave Selkirk, in 1994. It is alleged that he made improper contact with her breasts and other parts of her body and made a habit of displaying his “sexually aroused state” to her. Ms. Carrisales decided to sue Mr. Selkirk for his actions, along with the Department of Corrections for not stopping Mr. Selkirk after she notified her superiors. Ms. Carrisales sued under the Fair Employment and Housing Act of 1982 which states that, “It shall be an unlawful employment practice... for an employer... or any other person... to harass an employee or applicant.” The California State Supreme Court ruled unanimously that this law permits a lawsuit against the Department of Corrections, but not against fellow employees. The Court decided that non-supervisory employees cannot be sued under this employment discrimination law. The Court unanimously decided that this statute does not apply to situations where one coworker wishes sue to another for sexual harassment.

This does not mean that employees cannot sue each other at all for this type of behavior. It means instead that the language of this law does not allow it to be used by one coworker against another. In its opinion, the State Supreme Court noted that the harasser can certainly be held liable to the victim, but not under this statute.

Here is the problem I have with this decision. To begin, I am glad that the Court acknowledges that harassers can be sued and held liable, although not through this statute. What concerns me about this ruling, however, is the fact that the statute reads that an employer cannot harass nor can “any other person”. The words “any other person” are reprinted from the statute verbatim. The statute indicates that it is unlawful for an employer or any other person to harass due to sex, race, age, or various other reasons. The question I have is if the statute says it is unlawful for an employer or “any other person” to harass, wouldn’t the “other person” being referred to be expected to be a fellow worker? If it is not a fellow employee or coworker, then who is it? The statute is about fair employment and fair housing. The statute is anti-discrimination based. The statute wants to insure that people will not be harassed. It specifically says that an employer cannot do so, nor can any other person. Is the supposed other person to be the cleaning woman who comes to clean at night? How about the garbage man who clears the trash? The window washer? If they are not referring to fellow employees, to whom could they possibly be referring?

Rarely do we get an unanimous decision from the State Supreme Court, so I like to think twice before I take the opposite position. I’ve thought about this case for several

days, and I still do not think that the State Supreme Court has read this statute properly.

There is now some discussion over the fact that the legislature may rewrite the law so that it is even more clearly stated that coworkers can in fact be sued for harassment, as many believe as I do that that was the intent of the law. Since 1982, coworkers have sued each other for sexual harassment in the work place under the Fair Employment and Housing Act. The State Supreme Court has brought these lawsuits to a screeching halt, and I think it is a change for the worse.

Dr. Charles J. Unger is a criminal defense attorney in the Glendale law firm of Flanagan, Booth & Unger, and a therapist at the Foothill Centre for Personal and Family Growth. Mr. Unger writes a bimonthly column on legal and psychological issues