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That old parental advice not to stare took on new meaning Tuesday, when the 1st District Court of Appeal in Alameda County, Calif., ruled that staring at a fellow employee might constitute sexual harassment in the workplace. In a suit filed in Alameda County, Michelle Birschtein claimed her employers at an automobile manufacturing plant in Fremont, Calif., had done nothing to stop forklift driver George Bonillia from continuing to harass her. According to the ruling, Bonillia had been ordered to stay away from Birschtein, who was on the assembly line, after persistently asking her on dates and making suggestive comments about wanting to “eat her” or bathe her. But he continued to sit at a distance and stare at Birschtein for as long as five to 10 minutes at a time and occasionally grabbed his crotch. The 1st District ruled that Bonillia’s staring and the employer’s failure to stop it may have violated Birschtein’s protections under the state Fair Employment and Housing Act. To support its finding, the 1st District pointed to several federal court cases involving threatening stares and to the Los Angeles-based 2nd District’s ruling in Accardi v. Superior Court, 17 Cal.App.4th 341, which dealt with situations in which gender was a substantial factor in discrimination. “The Accardi opinion put the matter convincingly,” Justice Laurence Kay wrote, “when it characterized such a skein of harassment and complaint followed by retaliatory acts as a ‘continuous manifestation of a sex-based animus.’ Nothing more is required to state a claim for relief under the statute.” Justice Patricia Sepulveda and San Francisco Superior Court Judge Alfred Chiantelli, sitting on assignment, concurred. The ruling overturned Alameda County Superior Court Judge William McKinstry, who had granted the employer’s motion for summary judgment, and sent the case back to be examined on its merits. It also held that Birschtein’s claims for harassment prior to May 23, 1996, were not barred by FEHA’s one-year statute of limitations because Bonillia’s actions were part of a series of unlawful acts. “Beginning with a series of overtly sexual remarks in the fall of 1995, through the staring campaign continuing intermittently through 1996 and 1997,” Kay wrote, “Bonillia’s conduct was arguably sufficiently related and ongoing to constitute a ‘continuing course of unlawful conduct.’ “ The court said in closing, however, that it was “not unmindful” that the state Legislature had not enacted a general civility code with FEHA and that the defendant might be able to prove at trial that Bonillia’s staring was trivial. “The staring episodes were sporadic, defendant tells us, lasted only a few seconds at a time, took place from a distance, and were never sexually suggestive,” Kay wrote. “We are also cognizant of the line that divides actionably severe or pervasive harassment in the workplace from isolated offensive acts that, as an irritant of collective life, go without legal redress. “The issues raised by these concerns, however, are for the trier of fact’s resolution.” The case is Birschtein v. New United Motor Manufacturing Inc., A090680.

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