Q&A: Homeowner association manager is flirting with sexual harassment suit
Question: Our homeowner association has dozens of employees and one female manager-agent. Dozens have complained of her overly flirtatious and seductive behavior, in that she “comes on” to their fathers, husbands, sons and boyfriends. Others complain of her bad treatment of female residents who visit the on-site office for association-related business.
She uses provocative dress and sexual overtones when dealing with men and suggestively gestures, makes jokes and innuendoes, sometimes touching men she converses with. She accommodates male homeowner requests, but not those of women. Some men have stated they felt it was a quid pro quo situation.
Our board consists of two women and three men. The manager engages in improper behavior with all three male directors who hired her and who don’t discourage her illicit behavior; they in turn rubber-stamp everything she wants. We pay more on contracts because she hires her male friends and boyfriends. At meetings when female directors discuss association business, male directors say they’re jealous of the manager, who keeps interrupting.
Two male homeowners complained of her unsolicited advances and sexual innuendoes toward them and of sexual harassment, threatening to sue the board. Can men be the subject of sexual harassment? Since the manager, not the board, harassed them, can the board still be sued? Can this be defused?
Answer: It “should be clear ‘that sexual harassment is discrimination based upon sex,’” the 11th Circuit Court of Appeals ruled in the 1982 case Henson vs. City of Dundee. Men can absolutely be the subject of sexual harassment. The manager, association and board directors can be sued.
Federal law — specifically, 42 USC section 2000e(b) — expressly includes any agent of an employer within the meaning of “employer.” Under the doctrine of “respondeat superior,” your association faces potential liability for the actions of all its agents and employees, including the manager, as found in the 1981 D.C. Circuit opinion in the case of Bundy vs. Jackson. She was hired by the same male directors who “don’t discourage her illicit behavior and rubber-stamp everything she wants.”
California Civil Code section 51.9 outlines the cause of action for sexual harassment, and there is no restriction on gender. Certain types of relationships create a duty to avoid this type of conduct. Traditionally, an employment relationship is considered for the context of sexual harassment. But any “business, service or professional relationship” potentially qualifies, and the statute specifically lists “landlord or property manager” as a qualifying relationship.
The Henson court found that quid pro quo sexual harassment is analogous to racial, religious or national origin harassment. In part, the Fair Employment and Housing Act defines harassment because of sex as including sexual and gender harassment. Fair Employment and Housing Commission regulations define sexual harassment as unwanted sexual advances, or visual, oral or physical conduct of a sexual nature. Violation examples are:
•Unwanted sexual advances
•Offering employment benefits in exchange for sexual favors
•Making or threatening reprisals after a negative response to sexual advances
•Visual conduct, such as leering, making sexual gestures, displaying suggestive objects or pictures, cartoon or posters
• Making or using derogatory comments, epithets, slurs and jokes
•Oral sexual advances or propositions
•Oral abuse of a sexual nature, graphic oral commentaries about an individual’s body, sexually degrading words used to describe an individual, suggestive or obscene letters, notes or invitations
•Physical conduct: touching, assault, impeding or blocking movements
Under the Fair Employment and Housing Act, if harassment occurs, the association may be liable even if the board was not aware of the harassment. Since the board is aware of the harassment, it must take immediate and appropriate corrective action to stop harassment. Employers are strictly liable for harassment by their agents and the manager-harasser can be held personally liable for damages.
California Government Code section 12940(k) requires an entity to take “all reasonable steps to prevent harassment from occurring.” Failure by the board to take immediate action to remedy this problem can be interpreted as a ratification of the manager’s actions. A victim may be entitled to monetary damages even though no employment opportunity has been denied and there is no actual loss of pay or benefits.
Inappropriate conduct by an employee creates liability for the association-employer, especially if the employer is aware of what is going on, let alone partakes in or encourages the behavior. Any homeowner receiving this type of unwanted treatment from your manager may bring a lawsuit against her as an individual, but also against your association and the three directors who appear to be aiding and abetting her behavior.
In addition to reprimanding and warning the manager, implementing an awareness and sensitivity training program for all employees and vendors who do business with the association is imperative. A “zero-tolerance” policy for any type of harassment should be published in the association’s employees guidelines for conduct and attire.
Zachary Levine, partner at Wolk & Levine, a business and intellectual property law firm, co-wrote this column. Vanitzian is an arbitrator and mediator. Send questions to Donie Vanitzian JD, P.O. Box 10490, Marina del Rey, CA 90295 or noexit@mindspring.com.
