California Court Finds Indirect Sexual Harassment Unlawful

An Indecent Photograph

In November 2018, Lillian Carranza, a Los Angeles Police Department (LAPD) captain, was on vacation when she received a call from her attorney that a nude photo resembling her was circulating within the LAPD ranks. The photo depicted a closeup of a woman’s naked upper torso, including her face. When the attorney sent a copy of the photo to Carranza, she confirmed it was not her but that the woman in the photo did have similar facial features.

Carranza immediately lodged a complaint with Los Angeles’ independent agency that fields sexual harassment complaints from city employees. The city opened an investigation, assigning investigator Tracey Gray. Once Gray received a copy of the photo, she attempted to obtain the photo’s metadata to find additional details about where it came from — but was unsuccessful.

Gray then interviewed Carranza, who confirmed the photo was not her but did acknowledge that the woman’s facial features — especially the eyes — were like hers. Carranza was unable to identify any LAPD officers who possessed the photos, and no one had interacted with Carranza about the photo; however, she believed officers within the LAPD were sharing the photo thinking it was her.

During the interview, Carranza asked for the photo’s source to be found and for the LAPD chief, Michael Moore, to send a memo to the LAPD saying that distributing this photo was misconduct and inappropriate. Gray forwarded this request up the chain of command.

Going Viral in the LAPD

While the investigation was ongoing, Detective Armando Munoz, who worked under Carranza’s command and whose job duties took him to different LAPD stations, called Carranza to let her know about “a naked picture of [her] being distributed throughout the city.” Carranza informed Munoz that the photo was not her and inquired on where the photo was being circulated. Munoz responded that he sees it everywhere he goes, and it is a “hot subject.”

Around the same time in another incident, a uniformed officer working an overtime shift at the Staples Center received the photo on his phone and shared it with other officers. The officers all believed the photo to be of Carranza, and one officer took a picture of the photo with his own phone.

Separately, between late 2018 and February 2019, Lieutenant Amira Eppolito, watch commander at an LAPD station, saw a group of officers gathered around a phone looking at a phone that Eppolito thought was Carranza. The officers had a “joking demeanor” about the photo. In addition, Eppolito stated “there was a lot of discussion” about Carranza and the photo at the LAPD. Eppolito was upset about the photo and reported to Chief Moore’s adjutant that Chief Moore should talk to the department about the photo.  

Department’s Response and Carranza’s Lawsuit

After considering Carranza’s and Eppolito’s requests, Chief Moore ultimately declined to address the department about the photo. While Moore found the photo was intended to “harass, intimidate, … [and] slander” Carranza and that sharing the photo amounted to misconduct, he determined that communicating this issue department-wide may cause Carranza further embarrassment, increase dissemination of the photo and impede the investigation. For these reasons, Chief Moore chose not to discuss the issue department-wide. No one informed Carranza of Moore’s decision or reasoning.

On January 25, 2019, while the internal investigation was ongoing and two months after her initial complaint to the city, Carranza filed a lawsuit against the city of Los Angeles for sexual harassment based upon a hostile work environment.

By August 2019, the LAPD concluded its investigation into the photo. The LAPD substantiated Carranza’s claims that unknown department personnel were circulating a nude photo purporting to be Carranza in at least four separate incidents in separate locations. Based on these findings, the investigation concluded that this conduct violated both the city’s and LAPD’s sexual harassment policy. Carranza was sent a notice informing her that the investigation sustained her complaint and that appropriate penalties would be imposed. However, Carranza later learned that the LAPD didn’t discipline any employees.

In September 2022, the jury trial for Carranza’s sexual harassment lawsuit began. At the trial, Carranza would testify that no one ever directly interacted with her regarding the photo and her entire experience was secondhand through other employees telling her the conduct was ongoing, but this knowledge impacted her working environment and made it difficult to concentrate. The jury found in Carranza’s favor and awarded her $4 million in damages. The city appealed.

Harassment Doesn’t Have to Be Direct to Be Unlawful

On appeal, the city’s main argument was that Carranza did not experience severe or pervasive harassment because she had not “endured sexually harassing interpersonal … interactions.” In other words, because Carranza testified that no one ever interacted with her about the photo in an inappropriate manner or made the lewd comments directly to her, she didn’t experience unlawful sexual harassment.

While the city argued that to be severe or pervasive the conduct must be “extreme” or the environment “hellish,” the appellate court noted that a hostile work environment exists “when the harassing conduct sufficiently offends, humiliates, distresses, or intrudes upon its victim, so as to disrupt the victim’s ability to perform the job as usual, or otherwise interfere with and undermine the victim’s personal sense of well-being.”

To this end, the court noted that Carranza was made aware that this photo purporting to be her was “circulating” throughout the department and that people were ogling the photo believing it was her and making lewd comments about her. In fact, the court notes even the police chief found the conduct around the photo was meant to “harass, intimidate, … [and slander] Carranza.”

Compounding her difficulties, the LAPD allowed the distribution to go unchecked for months despite repeated requests from Carranza to confirm that distributing the photo violated city and LAPD policies — as it would ultimately conclude in the investigation. Based on this conduct, as well as Carranza’s contemporaneous and credible assertions of a hostile work environment, the court concluded that Carranza presented substantial evidence to show she experienced unlawful sexual harassment based upon a hostile work environment.

Employer Lessons

For employers, this case offers several key takeaways:

• Most importantly, an employee does not need to directly experience harassing conduct if the conduct becomes known and negatively alters the employee’s work environment.
  The city’s failure to attempt any remedial intervention to try to stop the ongoing conduct affected the case’s outcome. An employer has an affirmative duty to prevent future instances of workplace harassment, and when the employer is aware harassment may be occurring and does nothing, it is the same as ratifying that conduct.
• Even after completing the investigation, the city took no action against any employee, even though it found the photo’s distribution violated policies and had identified officers who had seen the photograph. Again, the city failed to take action that may prevent future harassment by allowing the photo’s distribution to go unchecked.