Burning Question: Can Sharing Imagery Be Sexual Harassment?

Today’s burning question: I am a female fire captain in a large metro-sized fire department. I just discovered that a photo of a topless woman falsely said to be me is circulating electronically among fire department personnel. I asked the department to notify all personnel that the photo is not of me, and to order them stop sharing it. The Department declined to do so and won’t take disciplinary action against those who shared it. Do I have any legal recourse?

Answer: While not a fire department case, the Court of Appeals of California, Second Appellate District, Division Seven, upheld a $4 million jury verdict against the city of Los Angeles on those very facts. The suit was brought by LAPD Captain Lilian Carranza back in 2019 under California’s Fair Employment and Housing Act.

The Court of Appeals explained the facts as follows:

• Lilian Carranza, a captain in the Los Angeles Police Department, learned that a photo of a topless woman falsely said to be her was circulating electronically among LAPD personnel.
• One of her subordinates told her he had seen on-duty officers looking at the photo on a cellphone and making lewd comments about Carranza, and he told her everywhere he went officers were talking about the photo.
• Carranza asked the Department to notify its employees that the photo was not of her, and to order they stop sharing it.
• The Department declined to do so. Its own investigation later confirmed that the photo, intended to depict Carranza, was distributed throughout the Department.
• On January 25, 2019, Carranza filed suit against the City, asserting one cause of action for sexual harassment based on a hostile work environment.
• The jury trial began in September 2022 and lasted seven days.
• The jury awarded Carranza $1.5 million in past noneconomic damages and $2.5 million in future noneconomic damages, for a total of $4 million.
• The court awarded Carranza $610,050 in attorney fees and $31,450 in expert witness fees.

The city appealed, arguing that there was insufficient evidence to support the jury verdict. The Court of Appeals disagreed:

• When a party contends insufficient evidence supports a jury verdict, “[o]ur review ‘begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination.”
• [The California Fair Employment and Housing Act] FEHA prohibits sexual harassment in the workplace.
• To prevail on a hostile work environment claim under FEHA, a plaintiff must show “she was subjected to sexual advances, conduct, or comments that were (1) unwelcome; (2) because of sex; and (3) sufficiently severe or pervasive to alter the conditions of her employment and create an abusive work environment.”
• Whether harassment is sufficiently severe or pervasive that it creates a hostile work environment is not a “mathematically precise test,” but rather a fact-specific inquiry that turns on the totality of the circumstances.
• The City contends the “severe or pervasive” threshold is a “high standard” requiring “extreme” conduct and a “hellish” workplace. As we recently held, the “severe or pervasive” requirement was formerly “‘quite a high bar for plaintiffs to clear.'”
• In 2019, however, the Legislature added section 12923, which reaffirms a “single incident of harassing conduct” may constitute harassment “if the harassing conduct has unreasonably interfered with the plaintiff’s work performance or created an intimidating, hostile, or offensive work environment.”
• [T]he City contends only that there was insubstantial evidence that the harassment was sufficiently severe or pervasive to alter the conditions of Carranza’s employment and create an abusive work environment. It argues she presented evidence about only one incident involving the photo at the Mission Station, which she did not witness or experience herself but merely learned about after the fact in a telephone call.
• Substantial evidence supports the jury’s finding that the harassment was sufficiently severe or pervasive to create a hostile work environment.
• Contrary to the City’s contention, Carranza’s claim was not based on a single incident in which a few fellow officers outside her unit viewed the photo, but instead was based on her reasonable understanding that the circulation continued for some length of time and involved “dozens if not hundreds” of officers, both identified and unknown, throughout the LAPD.
• Compounding Carranza’s distress was the fact that, despite her repeated requests, the Department did not order LAPD officers to stop sharing the photo, advise them that it was not Carranza in the photo, or discipline anyone involved in the distribution of the photo. That the LAPD allowed the distribution to continue unchecked not only speaks to the sufficiency of the LAPD’s response to the harassment, but also to the pervasiveness and severity of the harassment itself and the impact on Carranza’s work environment.
• Moreover, notwithstanding the City’s suggestions to the contrary, Carranza presented substantial evidence that her work conditions were altered as a result of the harassment, making it more difficult for her to do her job.
• She testified that after first learning of the photograph’s circulation from Smith, she “felt dejected, very sad” and “didn’t want to be in the presence of people at work.”
• Carranza stated that in December 2018, she began having panic attacks for the first time and started therapy “[b]ecause [she] felt like [she] was in this dark hole and without any support.”
• The City’s position that a plaintiff must be harassed to her face is inconsistent with the long-standing principle that “‘a person can perceive, and be affected by, harassing conduct’ in the relevant environment ‘by knowledge of that harassment’ as well as by “personal observation.”
• FEHA does not reward discretion in harassing behaviors. Rather, it protects victims from workplace environments poisoned by inappropriate conduct — whether “sung, shouted, or whispered.”
• Substantial evidence supported the jury verdict finding the City liable for sexual harassment.

Here is a copy of the decision: