Orange County Employment Lawyers Blog
There was no question the text messages crossed the line. A drug store supervisor sent them to a subordinate employee – one a picture of his genitals and another of him engaged in a sexual act. But was the employer liable for sexual harassment? 
As Los Angeles sexual harassment lawyers, exchanges like this are huge red flags that no employer should ignore. But from a legal standpoint, the question when it comes to employer liability for such actions is: What was the response? Were the complaints taken seriously and investigated in good faith? Did the company protect the supervisor or was their adequate accountability? Was the subordinate’s safety taken into account or were they left to fend for themselves? Did the company retaliate against the reporting employee?
In the recent case of Atalla v. Rite Aid Corporation et al., the California Court of Appeal for the Fifth Appellate District ruled in favor of the employer, finding that the acts that led to alleged sexual harassment stemmed from a relationship that was entirely private and separate from the supervisor-subordinate dynamic. Further, the employer – once notified of the incident – did conduct an investigation, fire the supervisor, invite the employee to return to her job, and offer her paid counseling.
According to court records in the case, the plaintiff, a pharmacy intern, and her boss were close friends. In fact, they had a pre-existing friendship before she started working for the company that had no connection to the job. They had regular, candid, and familiar interactions on a wide range of topics. They frequently talked on the phone and texted with each other – not just about work, but their families, food, other people, pets, exercise, vacations, alcohol, etc. They also had regular, in-person interactions with each other, meeting up for birthday dinners, holidays, lunches, and coffee. The exchange in question was sent by the supervisor to the subordinate outside of the workplace and not during work hours.
Soon after receiving those messages, plaintiff’s employment lawyer sent a letter to the company’s human resources division, alleging sexual harassment and saying she wouldn’t return to work. An attorney for the employer spoke to plaintiff’s attorney, and the incident was immediately investigated. HR met with the supervisor, who confessed to sending the messages. he was suspended, informed of the company’s anti-retaliation policy, and then ultimately fired.
The sexually explicit text messages were undoubtedly inappropriate, but were they work-related? Was there evidence the sender was acting in his capacity as supervisor when he sent them?
The trial and appellate courts both ruled he was not.
The company invited the employee to return to work after the supervisor’s termination. She responded she planned to resign and pursue a sexual harassment lawsuit. The company paid out her remaining vacation time.
In addition to siding with the company on the question of sexual harassment, the courts ruled in favor of the employer on the question of wrongful termination. The employee’s decision to quit was not constructive termination stemming from the company’s intentional creation of intolerable working conditions that left her with no choice but to resign.
The bottom line here is that not all incidents of sexual harassment at work translate into winnable legal cases. The specifics of the company’s response are essential in determining the viability of a potential lawsuit.
Contact the employment attorneys at Nassiri Law Group, practicing in Newport Beach, Riverside and Los Angeles. Call 714-937-2020.
Additional Resources:
Atalla v. Rite Aid Corporation et al., Feb. 24, 2023, California Court of Appeal for the Fifth Appellate District