On Point News reports that Janet Orlando’s $1.7 million victory (May 2006) has been tossed by an appellate court that noted that it wasn’t sex discrimination when the employer was spanking everyone (along with other questionable motivational techniques as diaper-wearing and pies in the face) and the jury instructions failed to make clear that conduct not aimed on grounds of sex was not sexually discriminatory. The opinion is “unpublished” so it will not be precedential.
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Nice to know that as long as you do it to everybody it isn’t sexual! Now I can require all my employees to go topless and it won’t be sexual discrimination…
Scote,
Actually, that reasoning has been the basis of judiciary changes to decency laws in several places in the country.
Spanking adults is generally illegal (as assault), but does not necessarily constitute sexual harassment, as the plaintiff seems to have assumed it automatically did.
The court’s ruling was faithful to the California Supreme Court’s decision in Lyle v. Warner Brothers (2006), which made clear that harassment must occur be because of sex to be actionable as sexual harassment under California’s Fair Employment and Housing Act.
In almost all cases, however, an employer spanking an employee will be illegal assault.
This appears to be the rare case where a jury found that the spanking was not an illegal assault.
Juries are not generally inclined to so rule.
Employers should be aware that spanking their employees is stupid and likely to lead to liability for assault.
Yes, don’t spank your employees — have your employees spank your customers. They pay good money for the service, and usually tip generously as well!
Nothing sexual, of course…
Isn’t whether or not it was sexual a “matter of fact” to be determined by the jury? What if you could show that the employer was bi-sexual and was “Getting off” on it no matter what the gender of the spankee?