Corpun file 19944

Fresno Bee, California, 17 January 2008

Woman loses a spanking case

By Brad Branan
Fresno Bee

A California appeals court has thrown out a $1.5 million sexual harassment judgment for Janet Orlando, a Fresno woman who was spanked in front of co-workers.

The key issue should not have been whether Orlando -- whose case drew national attention -- was spanked, the 5th District Court of Appeal concluded Monday. Rather, the jury should have been instructed to find whether Orlando was spanked because she's a woman.

The court ordered a new trial. The decision reverses an April 2006 jury decision in Fresno County Superior Court against Alarm One Inc.

The company admitted the spankings, but said they were simply used to motivate workers, male and female.

Orlando, a saleswoman who left the company in 2004, Wednesday referred questions to her attorney, Nicholas Wagner of Fresno.

Wagner criticized the appellate court's decision.

"I'm kind of surprised that the court has taken the position that, if men and women are harassed the same way, then it's OK," said Wagner, adding that he hopes to bring the case back to trial this year.

But Fresno attorney K. Poncho Baker, who represented Alarm One at trial, called the ruling a "great decision."

"She needed to prove she was harassed or subjected to harassment because she was female," he said.

In reaching its decision, the appellate court cited a higher court ruling in a well-known sexual harassment case filed by a worker on the TV show "Friends."

In that decision, made two weeks before the jury ruled in the Orlando case, the California Supreme Court found that vulgar and coarse language was part of the creative process and was not aimed at the plaintiff or other female employees.

Alarm One argued that men and women were spanked, so there was no sexual harassment.

"There was evidence to support this," the 5th District opinion states. "There was testimony both men and women were spanked, both men and women administered the spankings, and the spankings were administered to men and women for the same reasons, including being late to meetings and losing at sales competitions."

The court also found that the Superior Court jury was inconsistent in its verdict.

The jury found Alarm One employees had committed sexual battery, but not assault or battery, the court's opinion noted.

© 2007 The E.W. Scripps Co.