In Mofrad v. United Parcel Service, Inc., Case No. 23-cv-01899-AMO, 2025 WL 2308492 (N.D.Cal. Aug. 11, 2025), the court denied defendant’s motion for summary judgment on plaintiff’s claim of sexual harassment under California’s Fair Employment and Housing Act (“FEHA”).
This decision is interesting, in that it arises from a scenario involving allegations by a male of sexual harassment by a female subordinate.
As to whether the alleged conduct was “severe or pervasive”, the court explained:
Reviewing the facts here, Mofrad complains about (1) an attempted kiss, (2) another kiss on the cheek, and (3) some three hugs by his subordinate. On the first occasion, the entire kiss on the cheek lasted for “a second or two.” Mofrad Dep. at 34. On the second occasion, Cartwright held Mofrad for approximately three seconds and her face came “within an inch” of his face before he pushed her off. Mofrad describes some three other instances where Cartwright came into the same room as him and hugged him before he “immediately” pushed her off. Mofrad describes how on each occasion he was so disturbed he was forced to leave the area and hide from Cartwright until he could calm down; that Cartwright’s harassment deeply disturbed him and caused severe anxiety attacks after each incident of harassment, and that he suffered continuous emotional distress as a result. This testimony precludes a finding that the conduct was insufficiently severe to support Mofrad’s sexual harassment claim. That the incidents of sexual harassment were physical in nature – each involved unwanted touching – further enhances the severity such that the harassing conduct cannot be discounted as a matter of law. See, e.g., Herberg v. California Inst. of the Arts, 101 Cal. App. 4th 142, 151 (2002) (holding that, for hostile environment claims based on one or a limited number of incidents, such an “incident must be severe in the extreme and generally must include either physical violence or the threat thereof.”). The weight of hostile environment authority, particularly in California law, provides that even a single instance of harassment can create a triable issue regarding the existence of a hostile work environment. Accordingly, UPS is not entitled to summary judgment on this issue. (Cleaned up.)
The court proceeded to explain that the evidence created a triable issue of fact as to whether the conduct was objectively and subjectively offensive. As to the “objective” inquiry, the court rejected UPS’s reliance on the plaintiff’s “position as a male in power relative to his alleged harasser, a female subordinate,” noting that “[t]he five instances of unwanted physical contact within the course of a three-month period denote something more than simple teasing or roughhousing or off-hand or trivial interactions.” (Cleaned up.)