According to the California Court of Appeal, since the jury was not instructed that to prevail the employee had to show that the harassment occurred because she was female, the verdict could not stand.
Orlando v. Alarm One, Inc. Before sales teams went out each morning, the field supervisor led a meeting to motivate the salespeople which involved yelling, chanting, cheering and a general pep rally atmosphere. The Fresno office adopted some of these techniques, including the spanking. Orlando was spanked a few times during these meeting. On January 14, , the last day on which she was spanked, Orlando claimed that she was injured by the conduct and was denied medical care.
Another employee complained that she too was injured as a result of the spanking, and shortly thereafter the office stopped this practice at the morning meetings. Orlando sued Alarm One for sexual harassment, assault, battery, sexual battery, and intentional infliction of emotional distress.
Alarm One then appealed this decision to the California Court of Appeal. To prevail on her hostile work environment sexual harassment claim, the court ruled, Orlando must demonstrate that the misconduct was severe enough or sufficiently pervasive to alter the terms and conditions of her employment and create a work environment that qualifies as hostile or abusive to employees because of their sex.
However, the court noted that the jury was not told that Orlando must show that the harassment was based on sex. That is, they were not told that to prevail Orlando was required to show that she was exposed to a hostile work environment because she is a woman. Noting that erroneous instructions are grounds for reversal if they likely affected the verdict, the court turned to the impact of the instruction. According to the court, there was evidence that the spankings were not based on sex because both men and women were spanked for the same reasons including tardiness and losing sales competitions.
