A California appeals court has thrown out a $1.7 million award to an alleged victim of a hostile spanking environment, finding the jury may have failed to consider whether a former alarm company saleswoman was paddled during staff meetings because of her gender.

There was evidence to support the defense theory that the spankings of Janet Orlando were part of a misguided motivational exercise, the 5th District Court of Appeal said in granting Alarm One a new trial, and the trial court improperly instructed the jury on the elements of a sexual harassment claim.

“Under the instructions given, the jury could have found for plaintiff merely because offensive sexual comments were made or conduct was tinged with offensive sexual connotations, without finding plaintiff was subjected to the conduct because she was female,” the court explained in an unpublished opinion.

“The purpose of the [Fair Housing and Employment Act] is to eliminate invidious discrimination, not to ban all allusions to sex in the workplace,” it added.

The Fresno County Superior Court jury in April 2006 found Alarm One liable for sexual harassment and Rob Harlan and Nina Correia -- the supervisors who delivered the spankings with a rival alarm company's yard sign -- liable for sexual battery. The award to Orlando included $1.2 million in punitive damages.

Justice Brad R. Hill, writing for the appeals court, also wiped out the sexual battery verdict because it was inconsistent with the jury's finding that Harlan and Correia did not assault Orlando or commit a simple battery on her.

Orlando, who was 52 at the time, received her spankings while she worked at the Fresno office of Alarm One. The spankings, she argued, were “based on ... sex” in part because men in the audience shouted derogatory comments such as “Spank that bitch. Slap that ho” while women were spanked, but made no such comments when men were spanked.

On the special verdict form, the jury answered “Yes” to the question “Was Plaintiff subjected to sexually harassing conduct?”

But Hill said there was evidence that "The spankings were just one of a number of 'crazy' things the sales force did to motivate the salespersons and get them 'in the mood' to sell," and concluded that because of the instructional error,

the jury may have considered all offensive conduct, including exposure to profanity or sexual comments that were not gender-related. If the jury had considered only conduct that occurred because respondent was female, it might have concluded that conduct was not “sufficiently severe or pervasive to alter the conditions of her employment and create an abusive work environment.”

While the appeal was pending, Orlando filed a separate breach-of-contract and fraud suit against Alarm One. The company, she alleged, had reneged on a post-verdict agreement to settle the sexual harassment case for $1.4 million.

According to Orlando's attorney, Alarm One wanted another $200,000 to $400,000 knocked off the award. In light of the appeals court decision, that doesn't seem like too bad a deal now.

By Matthew Heller
1/14/08