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Spanking Verdict Tossed Out

Published by on January 16, 2008

Only in California.  The California Court of Appeals, in an unpublished opinion, reversed a $1.7 million jury verdict in favor of a woman who had been spanked at work as part of a “motivational exercise.” Here is the opinion.  (Orlando v. Alarm One, Inc.)  The court recounted the following facts:             “Most of the employees […]

Only in California.  The California Court of Appeals, in an unpublished opinion, reversed a $1.7 million jury verdict in favor of a woman who had been spanked at work as part of a “motivational exercise.”

Here is the opinion.  (Orlando v. Alarm One, Inc.)  The court recounted the following facts:

            “Most of the employees in the Fresno office were 18 to 25 years old; plaintiff was 52 years old.  Every morning, before the teams went out to sell, there would be a meeting of the field supervisors and a meeting of the salespersons.  At the latter, a field supervisor would lead the meeting; the salespersons were given training and motivated to go out and sell alarm systems door-to-door.  The meetings had a pep rally atmosphere, with yelling, chanting, and cheering.  At other offices of Alarm One, the motivational techniques used at the meetings included bonuses, singing in front of the group, pies in the face, eating baby food, wearing diapers, and spanking.  Some of these techniques, including spanking with an Alarm One sign or a competitor’s sign, were imported to the Fresno office, which opened in July 2003.  Employees would be spanked for arriving late at a meeting or for losing a sales competition.

          Respondent was spanked a few times while she worked for Alarm One.  January 14, 2004, was the last date on which she was spanked; Jessica Dakin and three others were also spanked at the same meeting.  Afterward, Dakin complained that she had been injured; she had sustained a cut and a bruise from the spanking.  She filled out an injury report and was taken to a doctor.  After Dakin’s complaint, meetings were held with the supervisors and the sales staff; everyone was informed that the spankings were unacceptable.  The spankings stopped.”

The court reversed because the jury instructions did not tell the jury that “in order for plaintiff to prevail, she had to prove she was exposed to a hostile work environment because she was a woman.”  The employer made a creative argument on this issue, given that the spanking had apparently taken place:

“As we understand it, appellant’s argument is not that it spanked both males and females, so there was no actionable harassment based on sex because it harassed males and females equally.  Rather, the argument is that the spanking was not based on sex, but on a misguided notion that spanking employees who performed poorly (by arriving at work late or not selling enough product) in front of their peers would motivate them (or all of the employees) to perform better.  Therefore, the argument goes, there was no harassment of either sex.”

The plaintiff contended that there was sufficient evidence of gender-based harassment because one witness testified that that “[w]hen a guy was spanked they’d be just, like, get up there.  Get it over with, you know.  And when a girl was spanked – bend over, let me see that ass.  Spank that bitch.  Slap that ho.  Things of that nature.”  The court found that there was a conflict in the evidence on whether the harassment was because of the plaintiff’s sex and therefore the failure to instruct the jury on the proper legal standard, i.e. that the harassment must be based on gender, required reversal.

The jury had awarded $500,000 in compensatory damages and $1 million in punitive damages.

(Hat tip to Overlawyered.)

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